Exhibit (d)(3)
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (the "Agreement") by and among Danaher
Corporation, a Delaware corporation ("Parent") and the undersigned stockholders
(collectively, the "Stockholders") of Lifschultz Industries, Inc., a Delaware
corporation (the "Company") is dated May 15, 2001.
RECITALS
WHEREAS, concurrently herewith, Parent, Saltwater Acquisition Corp.
(the "Purchaser"), a Delaware corporation and a subsidiary of Parent, and the
Company are entering into an Agreement and Plan of Merger of even date herewith
(the "Merger Agreement"), and pursuant to the Merger Agreement, the Purchaser is
agreeing to make a tender offer (the "Offer") for all outstanding Common Shares
of the Company, at the Offer Price net to the seller in cash, to be followed by
a merger (the "Merger") of the Purchaser with and into the Company;
WHEREAS, as of the date hereof, each Stockholder (1) owns of record
that number of Common Shares appearing opposite his, her or its name under
Column A on Schedule A attached hereto (such Shares, together with all other
shares of capital stock or other securities of the Company acquired by such
Stockholder hereafter, whether acquired upon the exercise of options or by
purchase, dividend, distribution, stock split, recapitalization, exchange or
otherwise, and all securities into which or for any or all of such Shares may be
changed or exchanged, are collectively referred to as the "Shares"), and (2)
Beneficially Owns, and possesses the sole power to vote, the number of Common
Shares appearing opposite his, her or its name under Column B on Schedule A
attached hereto (such Shares, together with all other shares of capital stock or
other securities of the Company as to which such Stockholder hereafter acquires
Beneficial Ownership are collectively referred to as such Stockholder's
"Beneficially Owned Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement and make the Offer, Parent and the Purchaser have required that each
of the Stockholders agree, and each Stockholder hereby agrees, to enter into the
agreements set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual
representations, warranties, covenants and agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
COVENANTS OF STOCKHOLDERS
The recitals are hereby incorporated into and made a part of this
Agreement.
1.1 Agreement to Tender. Each Stockholder hereby agrees to validly
tender (or cause the record owner of such shares, as applicable, to validly
tender), pursuant to and in accordance with the terms of the Offer, but in no
event later than the then scheduled expiration date of the
Offer, all of such Stockholder's Shares and Beneficially Owned Shares, by
physical delivery of the certificates therefor, and to not withdraw any such
Shares or Beneficially Owned Shares, except following termination of the Offer
pursuant to its terms or expiration of this Agreement pursuant to Section 2 of
this Agreement.
1.2 Agreement to Vote. Each Stockholder hereby agrees, severally and
not jointly, that it shall, and shall cause the holder(s) of record of its
Beneficially Owned Shares on any applicable record date to, from time to time,
at any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of stockholders of the Company, however called, or in
connection with any written consent of the holders of Common Shares, or in any
other circumstances upon which a vote, consent or approval with respect to the
Merger, the Merger Agreement or any of the transactions contemplated thereby are
sought, (a) if a meeting is held, appear at such meeting or otherwise cause such
Stockholder's Shares and Beneficially Owned Shares to be counted as present
thereat for purposes of establishing a quorum, and (b) vote or consent (or cause
to be voted or consented), in person or by proxy, such Stockholder's Shares and
Beneficially Owned Shares, and any other voting securities of the Company
(whether acquired heretofore or hereafter) as to which such Stockholder has,
directly or indirectly, the right to vote or direct the voting, in favor of the
Merger, the Merger Agreement and the other transactions contemplated hereby and
by the Merger Agreement.
1.3 Other Votes. Unless Parent consents or requests otherwise, at
any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of stockholders of the Company, however called, or in
connection with any written consent of the holders of Common Shares, or in any
other circumstances upon which a vote, consent or approval of any of the
stockholders of the Company are sought, each Stockholder hereby agrees,
severally and not jointly, that it shall vote (or cause to be voted) such
Stockholder's Shares and Beneficially Owned Shares against (i) any merger
agreement, merger, consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of, by
or involving the Company or any of its subsidiaries (other than the Merger
Agreement and the Merger), (ii) any Acquisition Transaction, and (iii) any
amendment or modification of the certificate of incorporation or bylaws of the
Company or of any of its subsidiaries or other proposal or transaction involving
the Company or any of its subsidiaries which is reasonably likely to, in any
manner, directly or indirectly, (1) prevent, impede, impair, frustrate or
nullify the Offer, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement, or (2) change the voting
rights of any class of capital stock or other securities of the Company
(collectively, the "Negative Voting Matters"). Each Stockholder further agrees
not to commit or agree to take any action inconsistent with any of the
foregoing.
1.4 Grant of Proxy. Each Stockholder hereby revokes any and all
previous proxies granted with respect to any of such Stockholder's Shares or
Beneficially Owned Shares. Each Stockholder, by this Agreement, with respect to
such Stockholder's Shares and Beneficially Owned Shares, does hereby constitute
and appoint Parent, or any nominee of Parent, with full power of substitution,
as its true and lawful attorney and proxy, for and in its name, place and stead,
to vote each of such Stockholder's Shares and Beneficially Owned Shares as its
proxy, at any meeting (whether annual or special and whether or not an adjourned
or postponed meeting)
2
of stockholders of the Company, however called, or in connection with any
written consent of the holders of Common Shares, or in any other circumstances
upon which a vote, consent or approval of any of the Stockholders of the Company
are sought (including the right to sign its name (as stockholder) to any
consent, certificate or other document relating to the Company that the law of
the State of Delaware may permit or require) (i) in favor of the Merger, the
Merger Agreement, this Agreement and the other transactions contemplated hereby
and by the Merger Agreement, (ii) against any Negative Voting Matter or any
other action or agreement that would result in a breach or inaccuracy of, or
failure to fulfill, any covenant, representation, warranty, obligation or
agreement of the Company under the Merger Agreement, and (iii) in favor of any
other matter necessary for the consummation of the Offer and the other
transactions contemplated by the Merger Agreement and this Agreement. Each
Stockholder further agrees to cause such Stockholder's Shares and Beneficially
Owned Shares to be voted in accordance with the foregoing. The proxy granted by
each Stockholder pursuant to this Article II is irrevocable, is coupled with an
interest and is granted in consideration of Parent's entering into this
Agreement and the Merger Agreement.
1.5 No Transfers. Each of the Stockholders agrees not to, directly or
indirectly, (i) donate, pledge, encumber, issue, sell, transfer, assign, or
otherwise dispose of, in any manner (including without limitation by gift,
operation of law, merger, consolidation or reorganization) (collectively,
"Transfer") to any person, or (except for this Agreement) enter into any
Contract, option or other arrangement (including any profit-sharing arrangement)
with respect to the Transfer of, any of such Stockholder's Shares or
Beneficially Owned Shares, (ii) except for this Agreement, grant any proxy or
enter into any Contract or other voting arrangement relating to any of such
Stockholder's Shares or Beneficially Owned Shares, (iii) change, modify or alter
in any manner, or agree to change, modify or alter in any manner, the Beneficial
Ownership of any of such Stockholder's Shares or Beneficially Owned Shares, or
(iv) seek, solicit, commit or agree to take any of the actions described in this
Section 1.5. None of the Stockholders will request that the Company or its
transfer agent register the Transfer (book entry or otherwise) of any
certificated or uncertificated interest representing any of such Stockholder's
Shares or Beneficially Owned Shares, and each Stockholder hereby consents to the
entry of stop transfer instructions by the Company of any Transfer of any of
such Stockholder's Shares or Beneficially Owned Shares. Each Stockholder agrees
to notify Parent promptly and to provide all details reasonably requested by
Parent if such Stockholder is approached or solicited, directly or indirectly,
by any person with respect to any of the foregoing.
1.6 No-shop. Each Stockholder hereby agrees that he, she or it shall
not, and shall not permit or authorize any of his, her or its affiliates,
representatives or agents to, directly or indirectly, encourage, solicit,
explore, participate in or initiate discussions or negotiations with, or provide
or disclose any information to, any corporation, partnership, person or other
entity or group (other than Parent, the Purchaser or any of their affiliates or
representatives) concerning any Acquisition Transaction or enter into any
Contract, arrangement or understanding requiring the Company to abandon,
terminate or fail to consummate the Merger or any other transactions
contemplated by the Merger Agreement. From and after the execution of this
Agreement, each Stockholder shall immediately advise Parent in writing of the
receipt, directly or indirectly, of any inquiries, discussions, negotiations or
proposals relating to an Acquisition Transaction, identify the offeror and
furnish to Parent a copy of any such proposal or inquiry, if it is in
3
writing, or a written summary of any oral proposal or inquiry relating to an
Acquisition Transaction. Each Stockholder shall promptly advise Parent in
writing of any development relating to such proposal, including the results of
any discussions or negotiations with respect thereto. Each Stockholder shall,
and shall cause each of their respective affiliates, employees, agents,
investment bankers, attorneys and other advisors and representatives to,
immediately cease any and all existing activities, discussions or negotiations
with any persons with respect to, or that could reasonably be expected to lead
to, any Acquisition Transaction. Any action taken by the Company or any member
of the Board of Directors of the Company in accordance with the proviso to the
second sentence of Section 6.9(a) of the Merger Agreement shall be deemed not to
violate this Section 1.6.
1.7 Reasonable Efforts. Each Stockholder shall use its commercially
reasonable efforts to take, or cause to be taken, all actions, execute and
deliver all instruments, and do, cause to be done, and assist and cooperate with
the Company, Parent and Purchaser in doing, all things necessary, proper or
advisable to consummate and effect completely, in the most expeditious manner
practicable, the Offer, the Merger, the Merger Agreement, this Agreement and the
other transactions contemplated hereby and by the Merger Agreement (except in
their capacity as directors, officers, representatives, agents of the Company as
permitted by the proviso to the second sentence of Section 6.9(a)of the Merger
Agreement).
1.8 No Inconsistent Agreements. Each Stockholder hereby covenants
and agrees: (i) (a) that except as contemplated by this Agreement and the Merger
Agreement, the Stockholder has not entered any voting agreement or voting trust
with respect to any of its Shares, or (b) that any voting agreement, voting
trust, proxy or power of attorney it has previously entered into or granted with
respect to its Shares or Beneficially Owned Shares has expired or been revoked
or terminated, and (ii) that such Stockholder shall not, at any time while this
Agreement remains in effect, (x) enter into any voting agreement or voting trust
with respect to any of such Stockholder's Shares or Beneficially Owned Shares,
or (y) grant a proxy or power of attorney with respect to any of such
Stockholder's Shares or Beneficially Owned Shares.
1.9 Acquisition of Additional Shares. Each of the Stockholders
agrees to promptly notify Parent in writing of the nature and amount of any
acquisition by such Stockholder of any capital stock or securities of the
Company acquired directly or indirectly by such Stockholder on or after the date
hereof.
1.10 No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. Except as provided herein and in
the Merger Agreement, all rights, ownership and economic benefits of and
relating to the Shares shall remain vested in and belong to the Stockholders.
1.11 Documents Delivered. Each Stockholder acknowledges receipt of a
copy of the Merger Agreement and all exhibits and schedules thereto.
1.12 Disclosure. Each Stockholder hereby permits Parent and the
Purchaser to publish and disclose in the Offer Documents and, if approval of the
Company's stockholders is required
4
under applicable law, the Proxy Statement (including all documents and schedules
filed with the Securities and Exchange Commission) its identity and ownership of
the Shares and Beneficially Owned Shares and the nature of its commitments,
arrangements and understandings under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF STOCKHOLDERS
Each Stockholder represents and warrants to Parent with respect to
himself or itself as follows:
2.1 Authorization; Validity of Agreement. The Stockholder has full
power and authority to execute and deliver this Agreement, to perform the
Stockholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Stockholder
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by the Stockholder and no other
actions or proceedings on the part of the Stockholder are necessary to authorize
the execution and delivery by it of this Agreement and the consummation by it of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms.
2.2 Ownership. The Stockholder is, and as of immediately prior to the
Effective Time will be, (1) the sole and lawful record owner of the number of
Shares set forth next to such Stockholder's name under Column A on Schedule A
attached hereto, and (2) the sole and lawful Beneficial Owner of the number of
Shares set forth next to such Stockholder's name under Column B on Schedule A
attached hereto. The Shares set forth next to such Stockholder's name under
Column A and Column B on Schedule A attached hereto constitute all of the
capital stock and other securities of the Company owned of record or
Beneficially Owned by such Stockholder as of the date hereof. Except as set
forth on Schedule A attached hereto, neither such Stockholder nor any Beneficial
Owner or Beneficial Owners of such Stockholder's Shares own any options to
purchase, or rights to subscribe for or otherwise acquire, any securities of the
Company. The Stockholder has and at all times prior to termination of this
Agreement will have sole voting power and sole power to issue instructions with
respect to the matters set forth in Sections 1.1, 1.2, 1.3 and 1.4 of this
Agreement, sole power of disposition, sole power of conversion 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 and Beneficially Owned Shares of such Stockholder
with no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. The terms
"Beneficially Own," "Beneficially Owned," "Beneficial Ownership" and similar
terms with respect to any securities shall mean having "beneficial ownership" of
such securities as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). None of such
Stockholder's Shares or Beneficially Owned Shares is currently subject to any
voting trust, proxy or other Contract,
5
arrangement or restriction with respect to the voting or disposition of such
Shares or Beneficially Owned Shares, except as expressly contemplated by this
Agreement.
2.3 No Conflict. The execution, delivery and performance by the
Stockholder of this Agreement and, subject to compliance with securities Laws,
the consummation of the transactions contemplated hereby (i) are within such
Stockholder's powers, have been duly authorized by all necessary action
(including any consultation or other action by or with any other person), (ii)
require no Consent of or with respect to any Governmental Entity or any other
person and (iii) do not and will not conflict with, or result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any obligation
or to loss of a material benefit under, or result in the creation of any Lien
upon any of the properties or assets of the Stockholder under, (1) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other Contract to
which the Stockholder is a party or by which it or any of its assets or
properties are bound, or (2) any Order or Law applicable to the Stockholder or
by which it or any of its assets or properties are bound, other than any such
conflicts, violations, defaults, obligations, rights, losses or Liens that
individually or in the aggregate would not (a) materially impair the ability of
the Stockholder to perform its obligations under this Agreement, or (b) prevent,
delay or materially impair the consummation of any of the transactions
contemplated hereby or by the Merger Agreement. If this Agreement is being
executed in a representative or fiduciary capacity, the person signing this
Agreement has full power and authority to enter into and perform such Agreement.
2.4 Finder's Fees. No investment banker, broker or finder is entitled
to a commission or fee from Parent, Purchaser or the Company in respect of this
Agreement based upon any Contract made by or on behalf of the Stockholder.
2.5 No Group. The Stockholder is acting individually and not as part
of a "group," as defined in the Exchange Act.
ARTICLE IV
MISCELLANEOUS
3.1 Termination. This Agreement and the parties' obligations
hereunder (including the proxies granted hereunder) shall terminate on the
earliest of (i) the payment for the Shares owned by the Stockholders pursuant to
the Offer, or (ii) termination of the Merger Agreement pursuant to Section 8.1
thereof. No such termination of this Agreement shall relieve any party hereto
from any liability for any breach or violation of, or misrepresentation in, this
Agreement prior to termination.
3.2 Further Assurances. Each of the Stockholders will, from time to
time and without further consideration, execute and deliver, or cause to be
executed and delivered, such additional or further Consents, documents and other
instruments as Parent may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
6
3.3 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) or sent by fax (with immediate
confirmation) or nationally recognized overnight courier service, as follows:
(a) if to Parent, to:
Danaher Corporation
2099 Pennsylvania Avenue, NW
12th Floor
Washington, D.C. 20006-1813
Attn: Paul Burgon
Fax: (202) 828-0860
with a copy to:
Saltwater Acquisition Corp.
6920 Seaway Blvd.
Everett, WA 98203
Attn: James M. Rupp
Fax: (425) 356-5116
and:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037-1420
Attn: Mark A. Dewire, Esq.
Fax: (202) 663-6363
(b) if to any of the Stockholders, to the address of such Stockholder
as set forth in the books and records of the Company.:
with a copy to:
Jones, Waldo, Holbrook & McDonough, A Professional Corporation
1500 Wells Fargo Plaza, 170 South Main Street
Salt Lake City, Utah 84101
Attn: Robinson M. Alston
Fax: (801) 328-0537
or to such other person or address or facsimile number as either party shall
specify by like written notice to the other party hereto (any such notice of a
change of address to be effective only upon actual receipt thereof).
7
3.4 Entire Agreement. This Agreement (including the Schedules and
other documents referred to herein) and the Merger Agreement constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersede all prior written or oral and all contemporaneous oral
agreements and undertakings between any of the parties hereto with respect to
the subject matter hereof.
3.5 Amendment; Assignment. This Agreement may not be amended except
by an instrument in writing signed by all of the parties hereto. Neither this
Agreement nor any of the rights, benefits or obligations hereunder may be
assigned, in whole or in part, directly or indirectly, by any party (whether by
operation of law or otherwise) without the prior written consent of the other
parties hereto; provided, that Parent may assign any or all of its rights,
benefits and obligations hereunder to any direct or indirect wholly-owned
subsidiary of, or affiliate of, Parent without such consent. Any attempted
assignment in violation of this Section 3.5 shall be void. Subject to the
preceding sentences, this Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties and their respective permitted successors
and assigns, and the Stockholders shall take any and all actions necessary to
obtain the written confirmation from any such successor, assignee or transferee
that it is bound by all of the terms hereof.
3.6 Parties in Interest. Nothing in this Agreement, expressed or
implied, is intended to confer on any person, other than the parties hereto and
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
3.7 Waivers. Any extension or waiver of any right, obligation, breach
or provision hereunder shall be valid only if set forth in a written instrument
signed on behalf of the party to be bound thereby. No such extension or waiver
shall constitute a waiver of, or estoppel with respect to, any subsequent or
other breach or failure to strictly comply with the provisions of this
Agreement. The failure of either party to insist on strict compliance with this
Agreement or to assert any of its rights or remedies hereunder or with respect
hereto shall not constitute a waiver of such rights or remedies.
3.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any 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 thereby is not affected in any manner materially
adverse to either 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 fullest
extent possible.
3.9 Captions. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
3.10 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and all of which together shall
be deemed to be one and the same instrument.
8
3.11 Expenses. Each party hereto shall pay its own expenses incurred
in connection with this Agreement, except as otherwise specified in the Merger
Agreement.
3.12 Capitalized Terms and Other Terms. Capitalized terms used in
this Agreement that are not defined herein shall have such meanings as set forth
in the Merger Agreement.
3.14 Waiver of Appraisal Rights. Each Stockholder hereby waives any
rights of appraisal with respect to, or rights to dissent from, the Merger.
3.15 Stockholder Capacity. Each Stockholder is executing this
Agreement solely in his, her or its capacity as an owner of Shares, and nothing
herein shall limit or affect any actions taken by such Stockholder solely in his
or her fiduciary capacity as an officer or director of the Company.
3.16 Specific Performance. Each of the parties hereto acknowledges
and agrees that the other parties will be damaged irreparably if any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties agrees that
each of the other parties shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in the New York Supreme
Court, First Department, in Manhattan or the Federal District Court for the
Southern District of New York, in addition to any other remedy to which it may
be entitled, in law or in equity. Each party's right to seek specific
performance shall be in addition to, and not in lieu of, any other rights and
remedies that may be available hereunder or otherwise.
3.17 Interpretation. The defined terms used herein shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. All references herein to Articles, Sections and
Schedules shall be deemed to be references to Articles and Sections of, and
Schedules to, this Agreement unless the context shall otherwise require. All
Schedules attached hereto shall be deemed incorporated herein as if set forth in
full herein and, unless otherwise defined therein, all terms used in any
Schedule shall have the meaning ascribed to such term in this Agreement. The
words "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation." The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Unless otherwise expressly provided herein, any Contract, instrument or statute
defined or referred to herein or in any Contract or instrument that is referred
to herein means such Contract, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of Contracts or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. This Agreement shall be deemed to have been
drafted by each party hereto and this Agreement shall not be construed against
any party as a principal draftsperson. Unless otherwise expressly provided,
wherever the consent of any person is required or permitted herein, such consent
may be withheld in such person's sole discretion.
9
3.18 Governing Law; Enforcement. This Agreement and the rights and
duties of the parties hereunder shall be governed by, and construed in
accordance with, the Law of the State of Delaware. Each of the parties hereto,
(a) consents to submit itself to the personal jurisdiction of any Delaware State
Court or any Federal court of the United States of America sitting in Delaware,
and any appellate court from any thereof, in the event any dispute arises out of
this Agreement or any transaction contemplated hereby, (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 hereby in any
court other than a Delaware State Court or Federal court of the United States of
America sitting in Delaware, or an appellate court from any thereof, 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 hereby.
[next page is signature page]
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
DANAHER CORPORATION
By: /s/ Christopher C. McMahon
--------------------------
Name: Christopher C. McMahon
Title: Vice President and Controller
STOCKHOLDERS:
/s/ David K. Lifschultz
-----------------------
Name: David K. Lifschultz
/s/ Sidney B. Lifschultz
------------------------
Name: Sidney B. Lifschultz
/s/ Lawrence Lifschultz
-----------------------
Name: Lawrence Lifschultz
/s/ David A. Berman
-------------------
Name: David A. Berman
/s/ David K. Lifschultz
-----------------------
Name: Sidney B. Lifschultz 1992 Family
Trust
By: David K. Lifschultz, trustee
/s/ Michael Hirst
-----------------
Name: Michael Hirst
/s/ J. Randall Owen
-------------------
Name: J. Randall Owen
11
SCHEDULE A
Column A Column B
Number of Number of
Common Shares Common Shares
Stockholder Owned of Record Beneficially Owned
- ----------- --------------- ------------------
David K. Lifschultz 266,741 /(1)/
Sidney B. Lifschultz 11,678
Lawrence Lifschultz 46,032
David A. Berman 2,361
Sidney B. Lifschultz
1992 Family Trust 128,409
Michael Hirst 21,968
J. Randall Owen 1,000
_________________
(1) David Lifschultz beneficially owns 47,892 shares held by Lifschultz
Terminal Leasing, of which he is an officer and director, which shares on not
within his individual control and are therefore not subject to this Agreement.
12