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EXHIBIT 10.3
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EXECUTION COPY
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (this "AGREEMENT"), dated as of July 10, 2000,
by and among Waxman USA Inc., a Delaware corporation ("STOCKHOLDER"), Wilmar
Industries, Inc., a New Jersey corporation ("WILMAR"), BW Acquisition, Inc., a
Delaware corporation and a wholly-owned subsidiary of Wilmar ("BW ACQUISITION"
and, together with Wilmar, "PURCHASER"), American Stock Transfer & Trust
Company (the "VOTING TRUSTEE"), and Xxxxxxx Inc., a Delaware corporation (the
"COMPANY").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Purchaser and Company are entering
into an Agreement and Plan of Merger of even date herewith (the "MERGER
AGREEMENT"), pursuant to which Purchaser will acquire all of the outstanding
shares of common stock, $0.01 par value per share, of Company (the "COMMON
STOCK"), for the Merger Consideration, as defined in the Merger Agreement in
effect on the date hereof, pursuant to a merger of the Purchaser with and into
Company (the "MERGER");
WHEREAS, the Stockholder owns, beneficially and of record, as of the
date hereof, 7,186,530 shares of Common Stock (the "EXISTING SHARES" and,
together with any shares of Common Stock acquired after the date hereof and
prior to the termination hereof, hereinafter collectively referred to as the
"SHARES"), of which 1,000,000 Existing Shares are pledged (the "PLEDGED
SHARES") to Congress Financial Corporation ("CONGRESS") as collateral security
for the Stockholder's obligations to Congress pursuant to that certain Loan
and Security Agreement, dated as of June 17, 1999 and amended as of December
8, 1999, March 29, 2000, May 1, 2000 and July 9, 2000, by and among Congress,
Waxman Consumer Products Group, Inc., WOC Inc., Western American Manufacturing
Inc., WAMI Sales, Inc., Stockholder, Waxman Industries, Inc., a Delaware
corporation ("WAXMAN"), and TWI, International, Inc. (the "CONGRESS CREDIT
FACILITY");
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, and in reliance upon Stockholder's representations, warranties,
covenants and agreements hereunder, Purchaser has required that Stockholder
agree, and Stockholder has agreed, to enter into a Stockholder Agreement (the
"STOCKHOLDER AGREEMENT") dated today's date, and this Agreement; and
WHEREAS, this Agreement is being entered into concurrently with the
execution of the Merger Agreement and the Stockholder Agreement, and
capitalized terms used and not defined herein have the respective meanings
ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained and for such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
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1. DEPOSIT INTO VOTING TRUST ARRANGEMENT; AND ACKNOWLEDGMENT OF
RECEIPT.
Within one (1) business day of the date hereof, Stockholder
shall deliver to the Voting Trustee the certificates representing all of the
Existing Shares, other than the Pledged Shares, together with five duly
executed stock powers, endorsed in blank, with signature guaranteed by a
member of the medallion guaranty program (the "STOCK POWERS" and, collectively
with the Existing Shares (other than the Pledged Shares) and any other Shares
which it may hereunder receive from the Stockholder pursuant to the
Stockholder Agreement being collectively, the "VOTING TRUST"). The Stockholder
and the Voting Trustee shall take such action as is necessary to effect the
transfer of such shares of Common Stock to, and in the name of, the Voting
Trustee on the books of the Company, including the immediate filing of a
duplicate of this Agreement with the secretary of the Company. After the
filing of this Agreement in the registered office of the Company pursuant to
Section 10, certificates for the Common Stock transferred and delivered to the
Voting Trustee pursuant to this Agreement shall be issued to and held by the
Voting Trustee in the name of American Stock Transfer & Trust Company, as
Voting Trustee (such shares of Common Stock being referred to herein as the
"VOTING TRUST STOCK"). The Voting Trustee accepts the trust created hereby and
upon receipt by the Voting Trustee of the certificates for and upon the
transfer of such shares of Common Stock into the name of the Voting Trustee,
the Voting Trustee shall hold the Voting Trust Stock, as stockholder of
record, in each case subject to the terms and conditions of this Agreement.
The Voting Trustee acknowledges receipt of copies of the Merger Agreement and
the Stockholder Agreement.
2. STOCK CERTIFICATES.
On all certificates representing Voting Trust Stock, as well
as in the stock ledger of the Company, the following legend shall
conspicuously appear:
"The shares of Common Stock evidenced by this stock
certificate are subject to certain restrictions contained in
(i) the Voting Trust Agreement dated as of July 10, 2000 (as
it may hereafter be amended or otherwise modified from time
to time, the "Agreement"), by and among Waxman USA, Inc., as
Voting Trustee, Wilmar Industries, Inc. ("WILMAR"), BW
Acquisition, Inc. ("BW ACQUISITION" and, together with
Wilmar, the "PURCHASER") and Xxxxxxx Inc. (the "COMPANY")
and (ii) the Certificate of Incorporation and By-laws of the
Company, each as may be amended from time to time. The
holder of this stock certificate, by his acceptance hereof,
agrees to be bound by all the provisions of such agreements
and instruments, which agreements and instruments are
available for inspection by the owner hereof at the
registered office of the Company in the State of Delaware.
The shares represented by this stock certificate have not
been registered under the Securities Act of 1933. The shares
have been acquired for investment and may not be sold,
transferred or assigned in the absence of an effective
registration statement for these shares under the Securities
Act of 1933 or an opinion of the
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Company's counsel that registration is not required under
said Act."
3. ISSUANCE OF VOTING TRUST CERTIFICATES.
Promptly after the creation of the Voting Trust hereunder,
the Voting Trustee shall issue to the Stockholder, in exchange for the Voting
Trust Stock delivered hereunder, a Voting Trust Certificate substantially in
the form annexed as Exhibit A hereto (the "VOTING TRUST CERTIFICATE"). Except
as otherwise expressly provided herein, all options, rights of purchase and
other rights, powers and privileges affecting or relating to the Voting Trust
Stock, shall attach to the Voting Trust Certificate.
4. VOTING OF THE VOTING TRUST STOCK.
The Voting Trustee shall have the right to exercise, in
person or by its nominees or proxies, all rights and powers to vote the shares
of the Voting Trust Stock deposited hereunder and to take part in or give
consent with respect to any lawful corporate action with respect to which such
shares are able or required to be voted as follows: The Voting Trustee shall
vote the Shares of the Voting Trust Stock: (a) in favor of the Merger; (b)
against any action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Company
under the Merger Agreement; and (c) against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger
including, but not limited to, (i) any extraordinary corporate transaction
(other than the Merger), such as a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company (a "BUSINESS COMBINATION TRANSACTION"), (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the management or board of directors of Company, except as
otherwise agreed to in writing by Purchaser, (iv) any change in the present
capitalization of the Company, or (v) any other change in the corporate
structure (including the charter, by-laws or other organizational or
constitutive documents) or business of the Company. Voting Trustee agrees,
without limiting the foregoing, that it shall consult with Purchaser prior to
any such vote and vote the Shares of the Voting Trust Stock in such manner as
is determined by Purchaser to be in compliance with the provisions of this
Section 4. With respect to all other matters not specified in the foregoing
sentence herein, Voting Trustee shall vote the Shares represented by any
Voting Trust Certificate in accordance with the written instructions of the
registered holder thereof.
5. RECORD OF BENEFICIAL OWNERS; RESTRICTION ON TRANSFER.
(a) The Voting Trustee shall keep a record on its books of
the name of each holder of a Voting Trust Certificate and the number of shares
of Voting Trust Stock beneficially owned by each holder.
(b) No holder of a Voting Trust Certificate shall transfer
its Voting Trust Certificate or the beneficial ownership of any Voting Trust
Stock represented by such Voting Trust Certificate without the written consent
of Purchaser.
(c) The transfer of a Voting Trust Certificate may be
registered only upon the books of the Voting Trustee kept for the registration
and registration of transfer of
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Voting Trust Certificates upon surrender thereof to the Voting Trustee
together with transfer instructions duly executed by the registered owner
having such signature guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company, in such form as shall be
reasonably satisfactory to the Voting Trustee. Upon any such registration of
transfer the Voting Trustee shall execute and deliver in exchange for such
Voting Trust Certificate a new registered Voting Trust Certificate, registered
in the name of the transferee.
(d) If any mutilated Voting Trust Certificate is surrendered
to the Voting Trustee, or the Voting Trustee receives evidence to its
satisfaction that any Voting Trust Certificate has been destroyed, lost or
stolen, and upon proof of ownership satisfactory to the Voting Trustee
together with such security or indemnity as may be requested by the Voting
Trustee to save it harmless, the Voting Trustee shall execute and deliver a
new Voting Trust Certificate for the same number of shares of Voting Trust
Stock as the Voting Trust Certificate so mutilated, destroyed, lost or stolen,
with such notations, if any, as the Voting Trustee shall determine.
(e) Prior to due presentment of a Voting Trust Certificate
for transfer and compliance with the requirements of this Section 5, the
Voting Trustee may, except as otherwise required by law, treat the registered
holder of any Voting Trust Certificate as the owner thereof for all purposes
whatsoever and shall not be affected by any notice to the contrary.
(f) The Voting Trustee shall not (i) sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option
with respect to, the shares of Voting Trust Stock or (ii) create or suffer to
exist any lien, security interest or other charge or encumbrance of any kind,
or any other type of preferential arrangement (a "LIEN") upon or with respect
to any of the Voting Trust Stock except for the Lien created by this
Agreement.
6. DISBURSEMENT OF SHARES.
6.1. COMPANY'S COMMITMENT TO PURCHASE SHARES.
(a) Five business days after receipt by Voting Trustee of a
certification from the Company that it has purchased certain shares of Common
Stock pursuant to that certain agreement, dated as of the date hereof, by and
between the Stockholder and the Company (the "XXXXXXX AGREEMENT"), such
certification to be in substantially the form of Exhibit B hereto (the
"STANDBY CLOSING NOTICE") no later than 5:00 p.m. New York City time on
September 1, 2000, Voting Trustee shall immediately complete a Stock Power in
favor of the Company for the Purchase Shares, as determined in accordance with
the Xxxxxxx Agreement, date it the same date it received the Standby Closing
Notice, and deliver it, together with certificates representing the Purchase
Shares, to Company. If Voting Trustee does not have certificates representing
the exact number of Purchase Shares, it shall deliver to Company certificates
representing more than the Purchase Shares, together with instructions to the
Company's transfer agent (the "TRANSFER AGENT"), which instructions the
Company shall cause to be delivered to the Transfer Agent, requesting that a
certificate representing the Shares in excess of the Purchase Shares be
delivered to Voting Trustee at its address set forth below. The Company shall
cause a copy of the Standby Closing Notice to be sent to the Stockholder at
the same time it is sent to Voting Trustee.
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(b) If (i) the Effective Time (as defined in the Merger
Agreement) has not occurred on or prior to September 1, 2000 and (ii) the
Company has not repurchased from the Stockholder the Purchase Shares in
accordance with the Xxxxxxx Agreement by September 8, 2000, then, upon receipt
by the Voting Trustee of written notice from both the Stockholder and
Purchaser to such effect, the Stockholder shall be entitled to have
transferred to it by the Voting Trustee the Purchase Shares. To the extent
that the net proceeds per share received by the Stockholder from any sale of
the Purchase Shares is less than the Merger Consideration, Purchaser shall,
within ten (10) days after the Effective Time, pay to the Stockholder by wire
transfer of immediately available funds to the account or accounts designated
for payment an amount equal to the product of (a) the difference between the
Merger Consideration and the net proceeds per share received by the
Stockholder for the Purchase Shares, multiplied by (b) the number of Purchase
Shares sold by the Stockholder.
(c) Upon the transfer of the Purchase Shares pursuant to
Section 6.1(a) or (b), the Stockholder shall surrender its Voting Stock
Certificate to the Voting Trustee, and the Voting Trustee shall issue to the
Stockholder in exchange a new Voting Stock Certificate representing the stated
amount of Voting Stock on the surrendered Voting Stock Certificate less the
amount of Voting Stock released from the Voting Trust in connection with such
transfer.
6.2. THE MERGER. If Purchaser delivers to the Voting Trustee
a notice that the Effective Time has occurred (the "MERGER CLOSING NOTICE"),
the Voting Trustee shall continue to hold the Voting Trust then held by it on
the date of such Merger Closing Notice and disburse it in accordance with the
terms and conditions of this Section 6.2. Promptly after the receipt from the
Surviving Corporation (as defined in the Merger Agreement) of a letter of
transmittal and other instructions concerning the surrender of the Shares in
exchange for the Merger Consideration, Voting Trustee shall complete and
execute such documents and promptly return them, together with the
certificates representing all of the Shares then held as part of the Voting
Trust, as per the instructions received from the Surviving Corporation. In
completing such documents, Voting Trustee shall instruct that the Merger
Consideration be delivered to the following address, or to such other address
as Stockholder shall so notify Voting Trustee in writing no later than five
(5) business days following the Effective Time: (a) the first $9,910,243.13 of
Merger Consideration to: Chase Manhattan Bank, x/x Xxxxxxxx Xxxxxxxxx Xxxx.,
XXX# 000000000, Acct. # 322001293, Client # 2555, ref. # 6135 and (b) the
remaining Merger Consideration to: Firstar N.A. Milwaukee, WI, ABA #
000000000, Acct. Name Waxman USA Inc., Acct. # 821689312. In furtherance of
the foregoing, Stockholder hereby appoints and constitutes Voting Trustee as
its attorney-in-fact, with full power of substitution, to complete any and all
documents and to take any and all actions which are necessary or appropriate
in order to carry out the provisions and intent of this Section 6.2.
7. TERMINATION.
This Agreement shall terminate on the earliest of (a)
immediately upon the Voting Trustee having released the entire Voting Trust
pursuant to Section 6.2 hereof, (b) 5:00 p.m. New York City time on November
30, 2000, but only if the Effective Time has not occurred by such time, (c)
any decrease in the Merger Consideration from that referenced in the Merger
Agreement as of the date hereof or any other change (including by way of
amendment, modification, waiver or other acquiescence) relating to the Merger
Consideration (including,
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without limitation, any changes to the manner of calculating or paying,
including the timing thereof or conditions thereto, the Merger Consideration),
(d) any amendment to the Merger Agreement that adversely affects the
Stockholder and (e) fourteen (14) days after the occurrence of the
stockholders meeting called by the Company to approve the Merger as set forth
in Section 5.5 of the Merger Agreement, but only if the Effective Time has not
occurred by such time. The Stockholder and Purchaser shall jointly give
written notice of such termination to the Voting Trustee. Upon the receipt of
the notice of termination hereof, the Voting Trustee shall deliver all shares
of Voting Trust Stock and all Voting Trust Certificates to the Stockholder,
and irrespective of any delivery of such shares of Voting Trust Stock and such
Voting Trust Certificates, all rights incident thereof shall immediately vest
solely in the Stockholder.
8. VOTING TRUSTEE.
(a) The Voting Trustee shall have no duty or obligation
hereunder other than to take such specific actions as are required of it from
time to time under the provisions hereof, and it shall incur no liability
hereunder or in connection herewith for anything whatsoever other than as a
result of its own gross negligence or willful misconduct. Purchaser and
Stockholder, jointly and severally, agree to indemnify, hold harmless and
defend the Voting Trustee from and against any and all losses, claims,
liabilities and reasonable expenses, including the reasonable fees of its
counsel, which it may suffer or incur hereunder, or in connection herewith,
except such as shall result solely and directly from its own gross negligence
or willful misconduct, and each of Purchaser and Stockholder agree to
contribute an amount equal to 50% of the total amount paid to Voting Trustee
pursuant to this Section 8(a). Anything in this Agreement to the contrary
notwithstanding, in no event shall the Voting Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Voting Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of action.
The foregoing indemnities in this paragraph shall survive the resignation of
the Voting Trustee or the termination of this Agreement. The only duties and
responsibilities of the Voting Trustee shall be to hold the Voting Trust
received hereunder, to vote the Voting Trust Stock and to disburse such Voting
Trust in accordance with the terms of this Agreement. The Voting Trustee shall
have no responsibility for the validity of any agreements referred to in this
Agreement, or for the performance of any such agreements by any party thereto
or for interpretation of any of the provisions of any such agreements. The
Voting Trustee shall be fully protected and shall not incur any liability in
acting in accordance with any written instructions given to it hereunder and
believed by it to have been executed by the proper person. The Voting Trustee
shall be under no duty to inquire into or investigate the validity or accuracy
of any such document. The Voting Trustee's fees and expenses for acting as
Voting Trustee hereunder are set forth in Schedule I hereto. Such fees and
expenses shall be shared equally by Purchaser and Stockholder.
(b) The Voting Trustee shall not be liable for any action
taken or omitted by it in good faith unless the loss to the parties hereto was
primarily caused by (i) the gross negligence or willful misconduct of the
Voting Trustee as determined by a court of competent jurisdiction or (ii) a
breach by the Voting Trustee of any of the terms contained in this Agreement.
In the administration of the Voting Trust hereunder, the Voting Trustee may
execute any of its powers and perform its duties hereunder directly or through
agents or attorneys and may consult with counsel, accountants and other
skilled persons to be selected and retained by it.
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The Voting Trustee shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the advice or opinion of any such
counsel, accounts or other skilled persons unless the loss to the parties
hereto was primarily caused by (x) the gross negligence or willful misconduct
of the Voting Trustee as determined by a court of competent jurisdiction or
(y) a breach by the Voting Trustee of any of the terms contained in this
Agreement.
(c) In the event that the Voting Trustee shall be uncertain
as to its duties or rights hereunder or shall receive instructions, claims or
demands from any party hereto or its designated representative which, in its
opinion, conflict with any of the provisions of this Agreement, it shall be
entitled to refrain from taking any action and its sole obligation shall be to
keep safely all property held in escrow until it shall be directed otherwise
in writing by all of the other parties hereto or by a final order or judgment
of a court of competent jurisdiction.
(d) The Voting Trustee may resign at any time by giving
written notice thereof to the other parties hereto, but such resignation shall
not become effective until a successor voting trustee shall have been
appointed and shall have accepted such appointment in writing. If any
instrument of acceptance by a successor voting trustee shall not have been
delivered to the Voting Trustee within 30 days after the giving of such notice
of resignation, the resigning Voting Trustee may at the expense of Purchaser
and Stockholder, as to 50 percent each, petition any court of competent
jurisdiction for the appointment of a successor voting trustee.
9. OBLIGATION OF COMPANY.
For any meeting of Company's stockholders at which the Voting
Trustee shall be asked to vote, Company shall give the Voting Trustee,
Purchaser and the registered holder of the Voting Trust Certificate written
notice setting forth the date, time and place of the meeting and the matters
to be considered. Such notification shall be sent to the Voting Trustee,
Purchaser and the registered holder of any Voting Trust Certificate not less
than ten (10) business days nor more than sixty (60) days prior to such
meeting.
10. OTHER OBLIGATION OF THE VOTING TRUSTEE.
The Voting Trustee shall file a copy of this Agreement (and
any amendments hereto) in the registered office of the Company in the State of
Delaware, which copy the Company shall cause to be open to the inspection of
any stockholder of the Company and any holder of a Voting Trust Certificate
daily during business hours. The Company's registered office in Delaware is
located at the Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000, and the Company's registered agent at that
address is The Corporation Trust Company.
11. NOTICES.
All notices, deliveries or other communications required or
permitted hereunder shall be in writing (except as otherwise provided herein),
given in the manner provided in the Merger Agreement, and shall be deemed duly
given when received, addressed as follows:
If to Purchaser:
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Wilmar Industries, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Stockholder:
Waxman USA Inc.
c/o Waxman Industries, Inc.
00000 Xxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company:
Xxxxxxx Inc.
000 Xxxx Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
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With a copy to:
Xxxxx & Xxxxxxx
Xxxx Xxxxxx Xxx 000
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Voting Trustee:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
12. ENTIRE AGREEMENT; AMENDMENT.
This Agreement, together with the documents expressly
referred to herein, constitute the entire agreement among the parties hereto
with respect to the subject matter contained herein and supersede all prior
agreements and understandings among the parties with respect to such subject
matter. This Agreement may not be modified, amended, altered or supplemented
except by an agreement in writing executed by the Voting Trustee, Purchaser
and the Stockholder.
13. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
14. GOVERNING LAW.
Except as expressly set forth below, this Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. In addition, each of Stockholder and
Purchaser hereby agree that any dispute arising out of this Agreement shall be
heard in the Chancery Court of the State of Delaware or in the United States
District Court for the District of Delaware and, in connection therewith, each
party to this Agreement hereby consents to the jurisdiction of such courts and
agrees that any service of process in connection with any dispute arising out
of this Agreement may be given to any other party hereto by certified mail,
return receipt requested, at the respective addresses set forth in Section 11
above.
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15. INJUNCTIVE RELIEF.
The parties agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. The parties therefore agree that in the event of a breach of
any provision of this Agreement, the aggrieved party shall be entitled to
obtain in any court of competent jurisdiction a decree of specific performance
or to enjoin the continuing breach of such provision, in each case without the
requirement that a bond be posted, as well as to obtain damages for breach of
this Agreement. By seeking or obtaining such relief, the aggrieved party will
not be precluded from seeking or obtaining any other relief to which it may be
entitled.
16. COUNTERPARTS; FACSIMILE SIGNATURES.
This Agreement may be executed, including execution by
facsimile, in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
document.
17. SEVERABILITY.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
18. FURTHER ASSURANCES.
Each party hereto shall execute and deliver such additional
documents as may be necessary or desirable to consummate the transactions
contemplated by this Agreement.
19. THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, expressed or implied, shall be
construed to give any person other than the parties hereto any legal or
equitable right, remedy or claim under or by reason of this Agreement or any
provision contained herein.
20. LEGAL EXPENSES.
In the event any legal proceeding is commenced by any party
to this Agreement to enforce, or recover damages for any breach of, the
provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees and disbursements.
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IN WITNESS WHEREOF, Voting Trustee, Stockholder, Purchaser,
and Company have caused this Agreement to be executed by their duly authorized
officers, each as of the date and year first above written.
American Stock Transfer & Trust Company, as Voting Trustee
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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Waxman USA Inc.
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and Co-CEO
Wilmar Industries, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
BW Acquisition, Inc.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Xxxxxxx Inc.
By: /s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
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EXHIBIT A
TO THE
VOTING TRUST AGREEMENT
Form of
Voting Trust Certificate
Registered Holder:________________ Certificate No.__
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR
OTHER ENCUMBRANCE OF THIS VOTING TRUST CERTIFICATE OR THE COMMON STOCK
REFERRED TO HEREIN IS SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS SET
FORTH IN THE VOTING TRUST AGREEMENT DESCRIBED IN THIS CERTIFICATE AND PURSUANT
TO WHICH THIS CERTIFICATE IS ISSUED. THIS CERTIFICATE AND SUCH COMMON STOCK
ARE SUBJECT TO AND MAY BE TRANSFERRED OR ENCUMBERED ONLY IN ACCORDANCE WITH
SUCH AGREEMENT, A DUPLICATE OF WHICH IS ON FILE WITH THE SECRETARY OF THE
CORPORATION.
Voting Trust Certificate
for
6,186,530 shares of Common Stock
$0.01 par value per share
of
XXXXXXX INC.,
a Delaware corporation
THIS IS TO CERTIFY THAT, upon the termination of a certain
Voting Trust established by a Voting Trust Agreement, dated as of July 10,
2000 (as amended, modified or supplemented from time to time in accordance
with its terms, the "AGREEMENT"), by and among American Stock Transfer & Trust
Company, as voting trustee (the "VOTING TRUSTEE"), Waxman
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USA Inc., a Delaware corporation (the "STOCKHOLDER"), Wilmar Industries, Inc.,
a New Jersey corporation ("WILMAR"), BW Acquisition, Inc., a Delaware
corporation and a wholly-owned subsidiary of Wilmar ("BW ACQUISITION" and,
together with Wilmar, "PURCHASER"), pursuant to which this certificate has
been issued, the Stockholder, as registered holder of this certificate, will
be entitled to receive certificates for the shares hereinabove specified (the
"SHARES") and, for the duration of such Agreement, to receive distributions
equal to the cash or property or non-voting stock distributions, if any,
received by the Voting Trustee upon a like number of the Shares standing in
its name. Prior to the termination of the Agreement, the Voting Trustee, with
respect to the Shares, shall possess and be entitled to exercise, in the
manner and only to the extent provided in the Agreement, all the rights of
every kind of the holder of this certificate, including the right to vote and
to take part in, or to consent to any corporate or shareholders' action, it
being expressly stipulated that no right to vote, or take part in, or to
consent to any corporate or shareholders' action with respect to the matters
set forth in Section 4(a)-(c) of the Agreement, shall pass to the registered
holder hereof by, or under, this certificate.
This certificate is not transferable except as permitted by
the Agreement, and is not valid unless signed by the Voting Trustee. The
holder hereof, by accepting this certificate, manifests its consent that the
undersigned Voting Trustee may treat the registered holder hereof as the true
owner of this certificate for all purposes.
IN WITNESS WHEREOF, the undersigned, the Voting Trustee has
caused this certificate to be signed as of the __ day of July, 2000.
American Stock Transfer & Trust Company,
as Voting Trustee
By:
-------------------------------------
Name:
Title:
15
EXHIBIT B
TO THE
VOTING TRUST AGREEMENT
Form of Standby Closing Notice
The undersigned, Xxxxxxx Inc., a Delaware corporation (the
"COMPANY"), hereby certifies and states to American Stock Transfer & Trust
Company (the "VOTING TRUSTEE") as follows:
1. This certificate is a "Standby Closing Notice" within the
meaning a Section 6.1 of that certain Voting Trust Agreement dated July 10,
2000 (THE "VOTING TRUST AGREEMENT") among Wilmar Industries, Inc., a New
Jersey corporation ("WILMAR"), BW Acquisition, Inc., a Delaware corporation
and a wholly-owned subsidiary of Wilmar ("BW ACQUISITION" and, together with
Wilmar, "PURCHASER"), Company, Voting Trustee and Waxman USA Inc., a Delaware
corporation ("STOCKHOLDER"), and a copy of this certificate has been sent to
Stockholder on the date hereof.
2. Company has repurchased from Stockholder ______ shares of
its Common Stock, par value $0.01 per share, of Company in accordance with
that certain agreement, dated as of July 10, 2000, by and between the
Stockholder and the Company (the "XXXXXXX AGREEMENT"),and delivered to
Stockholder the purchase price therefor immediately available U.S. dollars in
accordance with the terms of the Xxxxxxx Agreement.
3. Voting Trustee is hereby instructed to deliver
certificates representing __________________ shares of Common Stock of the
Company, together with a duly completed and executed Stock Power (as defined
in the Voting Trust Agreement), to Company at the following address:
________________________
________________________
________________________
4. Voting Trustee is entitled to rely on this certificate in
accordance with the terms of the Voting Trust Agreement.
16
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of the ____ day of _____________, 2000.
Xxxxxxx Inc.
By:______________________________
Name:
Title:
17
SCHEDULE I
VOTING TRUSTEE FEES AND EXPENSES
[$2500 plus reasonable out-of-pocket expenses]
