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Exhibit (2)(c)
STOCKHOLDER AGREEMENT
This Stockholder Agreement (the "Agreement") is entered into
as of August 30, 2000 among Bayer Corporation, an Indiana corporation
("Parent"), Project Toledo Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("Purchaser"), and the individuals and other
parties listed on Exhibit 1 hereto (each a "Stockholder" and, collectively, the
"Stockholders" of Sybron Chemicals Inc., a Delaware corporation (the
"Company")).
PREAMBLE
A. Parent, Purchaser and the Company are parties to an
Agreement and Plan of Merger dated of even date herewith (such Agreement and
Plan of Merger, as amended from time to time, the "Merger Agreement"). Any
capitalized term used but not defined herein shall have meaning ascribed to such
term in the Merger Agreement.
B. The Merger Agreement provides, among other things, that
Purchaser shall make the Offer to purchase at a price of $35.00 per share, net
to the sellers in cash (the "Initial Transaction Consideration"), all of the
issued and outstanding shares of the Company's common stock, par value $0.01 per
share (the "Company Common Stock"), and shall merge with and into the Company
(the "Merger"), upon the terms and subject to the conditions set forth in the
Merger Agreement.
C. Each Stockholder owns beneficially and of record that
number of shares of Company Common Stock opposite his or her or its name set
forth on Exhibit 1 hereto (such shares, except for those identified on Exhibit 1
as held by the Stockholder under Company Benefit Plans, the "Initial Stockholder
Shares").
D. As a condition to the willingness of Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, each
Stockholder has agreed to tender the Initial Stockholder Shares and all other
shares of Company Common Stock acquired by such Stockholder after the date
hereof and during the term of this Agreement, pursuant to the Offer, and to vote
all the Initial Stockholder Shares and all other such shares of Company Common
Stock acquired by such Stockholder in favor of the Merger.
Therefore, the parties hereby agree as follows, intending to
be legally bound:
AGREEMENT
ARTICLE I
TENDER OFFER
SECTION 1.1. Tender of Shares. (a) Promptly, and in no event
later than the tenth business day following the commencement of the Offer or, if
later, the third business day following receipt of the applicable Offer
Documents, each Stockholder shall tender to the Depositary designated in the
Offer to Purchase (the "Offer to Purchase") distributed by Purchaser in
connection with the Offer (i) a letter of transmittal with respect to the
Initial Stockholder Shares and all other shares of Common Stock acquired by such
Stockholder in any capacity after
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the date hereof and prior to the termination of this Agreement in accordance
with its terms whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise (collectively, including the
Initial Stockholder Shares, the "Stockholder Shares" of such Stockholder),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Stockholder Shares of such Stockholder, and (iii) all other
documents or instruments required to be delivered pursuant to the terms of the
Offer to Purchase.
(b) Each Stockholder shall not, subject to applicable law,
withdraw the tender of its Stockholder Shares effected in accordance with
Section 1.1(a); provided, however, that such Stockholder may decline to tender,
or may withdraw, any and all of the Stockholder Shares if, without the prior
consent of such Stockholder, Purchaser amends the Offer to (i) reduce the
Transaction Consideration to less than the Initial Transaction Consideration,
(ii) reduce the number of shares of Company Common Stock subject to the Offer,
(iii) change the form of consideration payable in the Offer or (iv) amend or
modify any term or condition of the Offer in a manner adverse to the
stockholders of the Company (other than insignificant changes or amendments or
other than to waive any condition other than the Minimum Condition). Each
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of its Stockholder Shares pursuant to the immediately preceding
proviso.
SECTION 1.2. No Purchase. Purchaser and Parent may allow the
Offer to expire without accepting for payment or paying for any Stockholder
Shares, on the terms and conditions set forth in the Offer to Purchase. If all
Stockholder Shares validly tendered and not withdrawn are not accepted for
payment and paid for in accordance with the terms of the Offer to Purchase, they
shall be returned to the Stockholders, whereupon they shall continue to be held
by the Stockholders subject to the terms and conditions of this Agreement.
ARTICLE II
CONSENT AND VOTING
SECTION 2.1. Voting. Each Stockholder hereby revokes any and
all previous proxies granted with respect to its Stockholder Shares. By entering
into this Agreement, each Stockholder hereby consents to the Merger Agreement
and the transactions contemplated thereby, including the Merger. So long as this
Agreement is in effect and has not been terminated, each Stockholder hereby
agrees (i) to vote all Stockholder Shares now or hereafter acquired by each
Stockholder in favor of adoption of the Merger Agreement and approval of the
Merger and the other transactions contemplated thereby and (ii) to vote all
Stockholder Shares now or hereafter acquired by such Stockholder against (a) any
Alternative Acquisition and against any Alternative Acquisition Proposal, (b)
any merger agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company,
and (c) any amendment to the Company's certificate of incorporation or the
Company's by-laws or other proposal or transaction involving the Company or any
subsidiary of the Company, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify any provision of the
Merger Agreement, the Offer, the Merger or any other transaction contemplated
thereby or change in any manner the voting rights of any class of the Company's
capital stock. No Stockholder shall commit or agree to take any action
inconsistent with the foregoing.
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SECTION 2.2 Proxy. In order to fully implement the agreement
of each Stockholder set forth in Section 2.1 above, each Stockholder hereby
irrevocably appoints Parent, with full power of substitution (Parent and its
substitutes being referred to herein as the "Proxy"), as the true and lawful
attorney and proxy of such Stockholder to vote all Stockholder Shares of such
Stockholder on matters as to which such Stockholder is entitled to vote at a
meeting of the stockholders of the Company or to which such Stockholder is
entitled to express consent or dissent to corporate action in writing without a
meeting of stockholders, in the Proxy's absolute, sole and binding discretion,
on the matters specified in Section 2.1 above. Each Stockholder agrees that the
Proxy may, in such Stockholder's name and stead, (i) attend any annual or
special meeting of the stockholders of the Company and vote all Stockholder
Shares of such Stockholder at any such annual or special meeting as to the
matters specified in Section 2.1 above, and (ii) execute with respect to all
Stockholder Shares of such Stockholder any written consent to, or dissent from,
corporate action respecting any matter specified in Section 2.1 above. Such
Stockholder agrees to refrain from (A) voting the Stockholder Shares of such
Stockholder at any annual or special meeting of the stockholders of the Company
in any manner inconsistent with the terms of this Agreement, (B) executing any
written consent in lieu of a meeting of the stockholders of the Company in any
manner inconsistent with the terms of this Agreement, and (C) granting any proxy
or authorization to any person with respect to the voting of the Stockholder
Shares of such Stockholder, except pursuant to this Agreement, or taking any
action contrary to or in any manner inconsistent with the terms of this
Agreement. Each Stockholder hereby waives, and agrees not to exercise or assert,
any appraisal rights under Section 262 of the Delaware General Corporation Law
in connection with the Merger. Each Stockholder agrees that this grant of proxy
and appointment of attorney is irrevocable and coupled with an interest and
agrees that the person designated as Proxy pursuant hereto may at any time name
any other person as its substituted Proxy to act pursuant hereto, either as to a
specific matter or as to all matters.
SECTION 2.3. Transfer. (a) Until this Agreement is terminated,
each Stockholder shall not directly or indirectly (i) offer to sell, sell short,
transfer (including gift), assign, pledge or otherwise dispose of or transfer
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise or otherwise by
operation of law) (each, a "Transfer") any interest in, or encumber with any
Lien (as defined below), any of the Stockholder Shares of such Stockholder, (ii)
enter into any contract, option, put, call, "collar" or other agreement or
understanding with respect to any Transfer of any or all of the Stockholder
Shares of such Stockholder or any interest therein; (iii) deposit the
Stockholder Shares of such Stockholder into a voting trust or enter into a
voting agreement or arrangement with respect thereto; or (iv) take any other
action with respect to the Stockholder Shares of such Stockholder that would in
any way restrict, limit or interfere with the performance of its obligations
hereunder.
(b) Any and all certificates evidencing the Stockholder Shares
of such Stockholder shall bear the following legend:
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THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
STOCKHOLDER AGREEMENT BY AND AMONG BAYER CORPORATION, PROJECT
TOLEDO ACQUISITION CORP. AND CERTAIN STOCKHOLDERS OF SYBRON
CHEMICALS INC., INCLUDING THE STOCKHOLDER WHOSE SHARES ARE
REPRESENTED BY THIS CERTIFICATE. ANY TRANSFER OF SUCH SHARES
OF COMMON STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT
SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and
warrants to Purchaser and Parent that:
SECTION 3.1. Ownership. Such Stockholder is the sole, true,
lawful record and beneficial owner of the Stockholder Shares of such Stockholder
and that there are no restrictions on voting rights or rights of disposition
pertaining to the Stockholder Shares of such Stockholder. Such Stockholder will
convey good and valid title to the Stockholder Shares owned by such Stockholder
being acquired pursuant to the Offer or the Merger, as the case may be, free and
clear of any and all liens, restrictions, security interests or any encumbrances
whatsoever, other than restrictions under applicable securities laws
(collectively, "Liens"). None of the Stockholder Shares of such Stockholder is
subject to any voting trust or other agreement, arrangement or restriction with
respect to the voting thereof.
SECTION 3.2. Authority and Non-Contravention. (a) The
execution, delivery and performance by such Stockholder of this Agreement and
the consummation of the transactions contemplated hereby (i) are within such
Stockholder's power and authority, have been duly authorized by all necessary
action (including any consultation, approval or other action by or with any
other person), (ii) require no action by or in respect of, or filing with, any
governmental body (except as may be required under the HSR Act or similar
foreign laws and under the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (the "Exchange Act")), and (iii) do
not and will not contravene or constitute a default under, or give rise to a
right of termination, cancellation or acceleration of any right or obligation of
such Stockholder or to a loss of any benefit of such Stockholder under, any
provision of applicable law or regulation or any agreement, judgment,
injunction, order, decree, or other instrument binding on such Stockholder or
result in the imposition of any Lien on any assets of such Stockholder.
(b) If such Stockholder is married and the Stockholder Shares
of such Stockholder constitute community property or otherwise are owned or held
in a manner that requires spousal or other approval for this Agreement to be
legal, valid and binding, this Agreement has been duly consented to and
delivered by such Stockholder's spouse or the person giving such approval, and
is enforceable against such spouse or person in accordance with its terms.
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(c) If such Stockholder is an entity, such Stockholder (i) is
duly organized and validly existing under the laws of its jurisdiction of
organization and (ii) has all requisite corporate, company, or partnership, as
the case may be, power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby.
SECTION 3.3. Binding Effect. This Agreement has been duly
executed and delivered by such Stockholder and is the valid and binding
agreement of such Stockholder, enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by
such Stockholder are the only shares of Company Common Stock beneficially owned
by such Stockholder and, except as set forth in the disclosure schedule to this
Agreement, such Stockholder has no option to purchase or right to subscribe for
or otherwise acquire any securities of the Company and has no other interest in
or voting rights with respect to any other securities of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or
finder is entitled to a commission or fee from Purchaser or the Company in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of such Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND PURCHASER
Parent and Purchaser represent and warrant to the Stockholders
that:
SECTION 4.1. Corporate Power and Authority; Noncontravention.
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by Parent and Purchaser of this Agreement and the
consummation by Parent and Purchaser of the transactions contemplated hereby (i)
have been duly authorized by all necessary corporate action on part of Parent
and Purchaser, (ii) require no action by or in respect of, or filing with, any
governmental body (except as may be required under the HSR Act or similar
foreign laws and under the Exchange Act), and (iii) do not and will not
contravene or constitute a default under, the certificate of incorporation or
by-laws of Parent or Purchaser or any provision of applicable law or regulation
or any, judgment, injunction, order, decree, material agreement or other
material instrument binding on Parent or Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly
executed and delivered by Parent and Purchaser and is a valid and binding
agreement of Parent and Purchaser, enforceable against each of them in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any
Stockholder Shares to be acquired upon consummation of the Offer will be
acquired by Purchaser for its own account and not with a view to the public
distribution thereof and will not be transferred except in
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compliance with the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Agreements of Each Stockholder. Each Stockholder
hereby covenants and agrees that:
(a) No Solicitation. From the date of this Agreement until the
earlier of the Effective Time and the termination of this Agreement in
accordance with its terms, such Stockholder shall not (and it will not permit
any of its officers, directors, agents or affiliates to) directly or indirectly
(i) solicit, engage in discussions or negotiate with any person (whether such
discussions or negotiations are initiated by such Stockholder, the Company or
otherwise) or take any other action intended or designed to facilitate the
efforts of any person (other than Parent) relating to any Alternative
Acquisition, (ii) provide information with respect to the Company to any person,
other than Parent, relating to a possible Alternative Acquisition by any person,
other than Parent, or (iii) enter into an agreement with any person, other than
Parent, relating to a possible Alternative Acquisition. Such Stockholder shall
promptly advise Parent orally and in writing of any Alternative Acquisition
Proposal or inquiry made to such Stockholder with respect to or that could lead
to any Alternative Acquisition Proposal, the identity of the person making such
Alternative Acquisition Proposal and the material terms of any such Alternative
Acquisition Proposal or inquiry.
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of stock
dividends, stock splits, mergers, consolidations, recapitalization,
combinations, conversions, exchanges of shares, extraordinary or liquidating
dividends, or other changes in the corporate or capital structure of the Company
which would have the effect of diluting or changing Parent and Purchaser's
rights hereunder, the number and kind of shares or securities subject to this
Agreement and the price set forth herein at which the Stockholder Shares may be
purchased from such Stockholder pursuant to the Offer shall be appropriately and
equitably adjusted so that Parent and Purchaser shall receive pursuant to the
Offer the number and class of shares or other securities or property that Parent
or Purchaser, as the case may be, would have received in respect of the
Stockholder Shares of such Stockholder purchasable pursuant to the Offer if such
purchase had occurred immediately prior to such event.
(c) Profit Sharing. (i) (A) If the Merger Agreement is
terminated under any of the circumstances described in Section
8.02(b)(ii) or Section 8.02(b)(iii) of the Merger Agreement under which
the Company is or becomes required to pay the Termination Fee and an
Alternative Acquisition is consummated, each of Richard M. Klein and
399 Venture Partners, Inc. (the "Principal Stockholders") shall pay to
Parent an amount equal to 50% of all profit (determined in accordance
with clause (B) below) in respect of the number of Stockholder Shares
owned of record or beneficially by such Principal Stockholder on the
date of consummation of such Alternative Acquisition (such shares, the
"Applicable Shares") associated with the consummation of such
Alternative Acquisition.
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(B) The profit associated with the consummation of such
Alternative Acquisition shall equal (x) the aggregate consideration
paid (which for purposes of this Agreement shall include any residual
interest in the Company retained immediately following consummation of
such Alternative Acquisition) in respect of the number of Stockholder
Shares of such Principal Stockholder as a result of the consummation of
such Alternative Acquisition, valuing any noncash consideration (which
for purposes of this Agreement shall include any residual interest in
the Company retained immediately following consummation of such
Alternative Acquisition) at its fair market value on the date of such
consummation, less (y) the product obtained by multiplying $35.00 by
the number of Stockholder Shares of such Principal Stockholder.
(ii) For purposes of this Section 5.1(c), the fair market
value of any noncash consideration consisting of:
(A) securities listed on a national securities exchange or
traded on the NASDAQ shall be equal to the average closing price per
share of such security as reported on such exchange or NASDAQ for the 5
trading days prior to the date of determination; and
(B) consideration which is other than securities of the form
specified in clause (A) of this clause (ii) shall be determined by a
nationally recognized independent investment banking firm mutually
selected, within three business days after the event requiring
selection of such investment banking firm, by Parent and the
Representative (as defined in clause (iv) below), which determination
shall be made by such investment banking firm within 15 business days
after the date of such event; provided, however, that if Parent and the
Representative do not agree within three business days after the date
of such event as to the selection of an investment banking firm, then,
by the end of the fifth business day after the date of such event, each
of Parent, on the one hand, and the Representative, on the other hand,
shall select an investment banking firm, which two investment banking
firms shall jointly make such determination within 20 business days
after the date of such event, or, if such two investment banking firms
are unable to agree on such determination, the two investment banking
firms shall, by the end of the 20th business day after the date of such
event, select a third investment banking firm and notify such third
investment banking firm in writing (with a copy to Parent and the
Representative) of their respective determinations of the fair market
value of such noncash consideration, following which such third
investment banking firm shall, within 15 business days after the date
of its selection, notify Parent and the Representative in writing of
its selection of one or the other of the two original determinations of
the fair market value of such noncash consideration; provided further,
that the reasonable and customary fees and expenses of all such
investment banking firms shall be borne equally by Parent, on the one
hand, and the Stockholders, on the other hand. The determination of the
investment banking firm shall be binding upon the parties.
(iii) Any payment to be made by a Principal Stockholder
pursuant to this Section 5.1(c) shall be made as follows: (A) with respect to
any Stockholder Shares held of record or beneficially by such Principal
Stockholder at the time the Alternative Acquisition is consummated (x) if the
consideration paid in the Alternative Acquisition is all cash, such payment
shall be made in cash within three business days following receipt by such
Principal Stockholder of such consideration by wire transfer of same day funds
to an account designated by Parent, (y) if such consideration is all noncash
consideration, such payment shall be made
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through a transfer of such noncash consideration to Parent, suitably endorsed
for transfer (with the method and timing of such transfer to be reasonably
determined by Parent), or (z) if such consideration is part cash and part
noncash consideration, such payment shall be made in cash (in the manner set
forth in clause (x) above) and in such noncash consideration (in the manner set
forth in clause (y) above) in the same proportion as such consideration is
payable to such Principal Stockholder in accordance with the terms of the
Alternative Acquisition, and (B) with respect to all other Stockholder Shares,
such payment shall be made in cash within three business days following the
consummation of such Alternate Acquisition or, if a payment is to be made in
accordance with clause (A) of this paragraph (iii), at the time of such payment,
in either case by wire transfer of same day funds to an account designated by
Parent.
(iv) (A) Each Principal Stockholder hereby irrevocably
constitutes and appoints Richard M. Klein (the "Representative"), as
such Principal Stockholder's true and lawful agent and
attorney-in-fact, to enter into any agreement in connection with the
transactions contemplated under this Section 5.1(c), to exercise all or
any of the powers, authority and discretion conferred on such Principal
Stockholder under this Section 5.1(c), to give and receive notices on
such Principal Stockholder's behalf and to represent such Principal
Stockholder with respect to any matter, suit, claim, action or
proceeding arising with respect to any transaction contemplated by this
Section 5.1(c), and the Representative hereby agrees to act as, and to
undertake the duties and responsibilities of, such agent and
attorney-in-fact. Each Principal Stockholder hereby ratifies and
confirms, and hereby agrees to ratify and confirm, any action taken by
the Representative in the exercise of the agency and power of attorney
granted to the Representative pursuant to this Section 5.1(c)(iv),
which agency and power of attorney, being coupled with an interest, is
irrevocable and a durable agency and power of attorney and shall
survive the death, incapacity or incompetence of such Principal
Stockholder.
(B) Each Principal Stockholder agrees and acknowledges that
the Representative shall represent and bind all the Principal
Stockholders and that Parent shall be entitled to rely exclusively on
the Representative for all purposes specified herein in connection with
Section 5.1(c), and that no suit, action, proceeding or claim may be
brought against Parent or any of its affiliates by any Principal
Stockholder with respect to any matter herein that is to be effected by
the Representative.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses, except
that the Company shall bear such costs and expenses of the Stockholders.
SECTION 6.2. Further Assurances. Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby.
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SECTION 6.3. Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable best 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 and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and
agree that performance of their respective obligations hereunder will confer a
unique benefit on the other and that a failure of performance will not be
compensable by money damages. The parties therefore agree that this Agreement
shall be specifically enforceable and that specific enforcement and injunctive
relief shall be available to Parent, Purchaser or the Stockholders for any
breach by the other party or parties of any agreement, covenant or
representation hereunder.
SECTION 6.5. Notices. All notices, requests, clauses, demands
and other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, telecopied (with confirmation) or sent by
overnight or same-day courier (providing proof of delivery) to Parent or
Purchaser in accordance with Section 9.05 of the Merger Agreement and to each
Stockholder at its address set forth on Exhibit 1 hereto (or at such other
address as shall be specified by like notice).
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of the Stockholder Shares of the Stockholders pursuant to Section 1.2
hereof. None of the representations and warranties contained in this Agreement
shall survive the acceptance for payment and payment for the Stockholder Shares
of the Stockholders pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not
be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
shall terminate upon the earlier of (i) the Effective Time and (ii) the
termination of the Merger Agreement in accordance with its terms; provided,
however, that if the Merger Agreement is terminated under any of the
circumstances described in Section 8.02(b)(ii) or Section 8.02(b)(iii) of the
Merger Agreement, Section 5.1(c) shall continue in full force and effect during
the 12 month period described in Section 8.02(b)(iii) of the Merger Agreement;
provided further, however, that if the Company or any of its subsidiaries enters
into an Acquisition Agreement relating to, but does not consummate, any
Alternative Acquisition prior to the end of such 12 month period, Section 5.1(c)
shall continue in full force and effect until such Alternative Acquisition is
consummated or such Acquisition Agreement is terminated and such Alternative
Acquisition is not consummated. No termination of this Agreement shall relieve
any party hereto from any liability from any breach of any provision of this
Agreement prior to termination.
SECTION 6.8. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that Purchaser
may assign its rights and obligations to another wholly-owned subsidiary of
Parent which is the assignee of Purchaser's rights under the Merger Agreement;
and provided further that except as set forth in the prior clause, a party may
not assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement
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without the consent of the other parties hereto and any purported assignment,
delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed
in accordance with and governed by the internal laws of Delaware without giving
effect to the principles of conflicts of laws thereof.
SECTION 6.10. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
SECTION 6.11. Stockholder Capacity. Each Stockholder signs
solely in its capacity as the record holder and beneficial owner of the
Stockholder Shares of such Stockholder and nothing herein shall limit or affect
any actions taken by such Stockholder in his or her capacity as an officer or
director of the Company and no such actions shall be deemed a breach of this
Agreement.
SECTION 6.12. Validity; Conflict. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, each of
which shall remain in full force and effect. To the extent that any provision of
this Agreement and the Merger Agreement conflict, the provisions of the Merger
Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
BAYER CORPORATION
By: /s/ E. L. Foote, Jr.
-----------------------------
Name: E. L. Foote, Jr.
Title: Executive Vice President
PROJECT TOLEDO ACQUISITION CORP.
By: /s/ John L. Williams
-----------------------------
Name: John L. Williams
Title: President
399 VENTURE PARTNERS, INC.
By: /s/ Richard Mayberry
-----------------------------
Name: Richard Mayberry
Title: Vice-President
/s/ Richard Mayberry
--------------------------------
Richard Mayberry
/s/ John H. Schroeder
--------------------------------
John H. Schroeder
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EXHIBIT 1
---------
<TABLE>
<CAPTION>
Unexercised Shares Held
Stockholders Stockholder Shares Options Under Benefit Plans
------------ ------------------ ------- -------------------
<S> <C> <C> <C>
Richard M. Klein 483,616 50,000 7,074
Sybron Chemicals Inc.
Birmingham Rd.
P.O. Box 66
Birmingham, NJ 08011
Fax: (609) 894-8641
John H. Schroeder 65,566 40,000 1,464
Sybron Chemicals Inc.
Birmingham Rd.
P.O. Box 66
Birmingham, NJ 08011
Fax: (609) 894-8641
399 Venture Partners, Inc. 2,025,000 0 0
Citicorp Venture Capital
399 Park Avenue
New York, NY 10043
Fax: (212) 888-2940
</TABLE>
