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STOCK OPTION, PLEDGE AND SECURITY AGREEMENT
AGREEMENT, dated as of November 4, 1995, among The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company, an Ohio corporation ("Parent"), SWACQ, Inc., a New York corporation and
a wholly-owned subsidiary of Parent ("Merger Subsidiary"), and the other parties
signatory hereto (each a "Shareholder," and collectively, the "Shareholders").
W I T N E S S E T H:
WHEREAS, Parent, Merger Subsidiary and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ United, Inc.
("Company"), have simultaneously with the execution of this Agreement entered
into an Agreement and Plan of Merger dated as of November 4, 1995 (as such
agreement may hereafter be amended from time to time, the "Merger Agreement"),
pursuant to which Merger Subsidiary will be merged with and into Company
("Merger"); and
WHEREAS, in furtherance of the Merger, Parent, through Merger
Subsidiary, shall, subject to the terms and conditions in the Merger Agreement,
commence a cash tender offer ("Offer") to acquire all of the issued and
outstanding Shares (as such term is defined below), including all of the Option
Shares (as such term is defined below); and
WHEREAS, as a condition to its entering into the Merger Agreement,
Parent has required that the Shareholders agree, and each Shareholder hereby
agrees, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, Parent,
Merger Subsidiary and Shareholders hereby agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "Shares" shall mean the issued and outstanding shares of
common stock, par value $.01 per share, of Company, including the
associated Common Stock Purchase Rights issued pursuant to the Rights
Agreement dated as of January 1, 1989, between Company and Mellon
Securities Trust Company, as Rights Agent.
(b) "Option Shares" shall mean, with respect to each
Shareholder, the Shares specified on Exhibit A and all Shares acquired
by such Shareholder in the future prior to the Effective Time (as such
term is defined in the Merger Agreement) whether through the exercise
of options, warrants or rights, through the conversion of convertible
or exchangeable securities or by means of purchase, gift, dividend,
distribution or otherwise.
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(c) "Person" shall mean an individual, a corporation, a joint
venture, a limited liability company, a partnership, an association, an
unincorporated organization, a group trust or any other entity or
organization, including a governmental or political subdivision or any
agency or instrumentality thereof.
(d) All other capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to them in the
Merger Agreement.
Section 2. Grant of Option.
(a) Each Shareholder hereby irrevocably grants to Parent and
Merger Subsidiary an exclusive option ("Option") to purchase all Option
Shares of such Shareholder at a price of $35.00 per Option Share, net
to Seller in cash, subject to any amounts required to be withheld under
applicable federal, state, local or foreign income tax laws and
regulations, and subject to adjustment under Section 2(d), which Option
shall be exercisable by Parent or Merger Subsidiary at any time on or
after January 2, 1996. In the event Merger Subsidiary accepts for
payment, on or prior to December 31, 1995, all shares validly tendered
and not withdrawn in the Offer, either Parent or Merger Subsidiary
shall exercise the Options within two business days following January
2, 1996. In the event that the Shareholders are not permitted to tender
(or are required to withdraw) their Option Shares pursuant to the
provisions of Section 3 of this Agreement, either Parent or Merger
Subsidiary shall exercise the Options within two business days
following the consummation of the Offer but in any event not earlier
than January 1, 1996.
(b) To exercise the Option, either Parent or Merger Subsidiary
shall send a written notice ("Exercise Notice") to each Shareholder
specifying the place and the time (which shall be not less than two
business days and not more than four business days after the date of
the Exercise Notice) for the closing of the purchase and sale of the
Option Shares in accordance with the provisions hereof. The closing of
the purchase of the Option Shares ("Closing") shall take place at the
places and at the times designated by Parent or Merger Subsidiary in
the Exercise Notice.
(c) At Closing, each Shareholder shall sell, assign, convey and
transfer to Parent or Merger Subsidiary, to the extent not already
delivered pursuant to Section 6, and its successors or permitted
assigns, each of such Shareholder's Option Shares, free and clear of
any and all liens, claims, security interests (other than the security
interest granted pursuant to Section 6), encumbrances, options or
adverse claims whatsoever, and each Shareholder shall deliver or cause
to be delivered to either Parent or Merger Subsidiary a certificate or
certificates representing the number of Option Shares to be delivered
by such Shareholder at the Closing, duly endorsed, or accompanied by
stock powers duly executed in blank, with all required transfer tax
stamps affixed thereto; and either Parent or Merger Subsidiary shall
deliver to each Shareholder (or the Shareholder's designee) by wire
transfer or certified or bank cashier's check or checks,
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an amount equal to (i) the product of (x) the number of such
Shareholder's Option Shares purchased at Closing multiplied by (y) the
Offer Price, less (ii) any amounts required to be withheld under
applicable federal, state, local or foreign income tax laws and
regulations.
(d) In the event of any change in Company's capital stock by
reason of any stock dividend, stock split, merger, consolidation,
recapitalization, combination, conversion, exchange of shares, or
dividend (other than the declaration and/or payment of regular
quarterly cash dividends in accordance with Company's past dividend
policy), or other change in the corporate or capital structure of
Company, which would have the effect of diluting or changing Parent's
or Merger Subsidiary's rights hereunder, the number and kind of shares
or securities subject to the Option and the Offer Price shall be
appropriately and equitably adjusted so that (i) Parent or Merger
Subsidiary shall receive, at the Closing, the number and class of
shares or other securities or property that Parent or Merger Subsidiary
would have received and (ii) the Shareholders shall receive, at the
Closing, the consideration they would have received in respect of the
Option Shares purchasable upon exercise of the Option if the Option had
been exercised immediately prior to such event.
Section 3. Tender and Withdrawal of Option Shares. If the Offer is
extended to a time on or after 5:00 p.m. New York time on January 5, 1996, each
Shareholder shall promptly (and in any event not later than January 3, 1996) and
validly tender all of such Shareholder's Option Shares pursuant to the Offer,
and shall not thereafter withdraw the tendered Shares, provided, however, that
if the Offer Price (as defined in the Merger Agreement) is for any reason
increased above $35.00, then each Shareholder hereby agrees that (i) such
Shareholder will not tender such Shareholder's Option Shares pursuant to the
Offer at any time on or after the date of the first public announcement of such
increase in the Offer Price, and (ii) if any of such Shareholder's Option Shares
have been tendered into the Offer prior to the date of the first public
announcement of such increase in the Offer Price, such Shareholder shall
promptly (and in any event not later than three business days after the first
public announcement of such increase) properly withdraw all such Option Shares.
The obligation of the Shareholders under this Section 3 shall be deemed
satisfied, with respect to all Option Shares delivered pursuant to Section 6, by
the appointment and grant pursuant to Section 5.
Section 4. Restriction on Transfer, Proxies and Non-Interference. Except
as otherwise specifically provided in this Agreement and so long as this
Agreement remains in effect, no Shareholder shall, directly or indirectly: (i)
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or otherwise consent to the offer for sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of any or
all of such Shareholder's Option Shares or any interest therein; (ii) grant any
proxies or powers of attorney, deposit any
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Option Shares into a voting trust or enter into a voting agreement with respect
to any Option Shares; or (iii) vote any Option Shares in favor of a transaction
inconsistent with the Merger.
Section 5. Grant of Irrevocable Proxy; Appointment of Attorneys-in-Fact.
Each Shareholder hereby irrevocably grants to Parent and its officers, and ▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or any of them (each a "Proxyholder"), each
with full power of substitution, a proxy to exercise all voting and other rights
with respect to all of such Shareholder's Option Shares, including without
limitation, with respect to the Merger and the other matters contemplated by the
Merger Agreement. Such proxy shall be considered coupled with an interest in the
Option Shares and supported by the pledge of Option Shares provided in this
Agreement and is irrevocable. All prior proxies and powers given by each
Shareholder with respect to such Shareholder's Option Shares are, without
further action, hereby revoked for so long as this Agreement is in effect, and
no subsequent proxies or powers may be given, and if given will not be
effective. Each Proxyholder will, with respect to the Option Shares, be
empowered to exercise all voting and other rights of the Shareholders with
respect to the Option Shares as such Proxyholder, in his or its sole discretion,
may deem proper at any meeting of the Company's shareholders, by written consent
or otherwise. The foregoing proxy may be exercised by any Proxyholder only to
the extent consistent with the terms of this Agreement and the Merger Agreement.
In addition to and without limiting the generality of the foregoing,
each Shareholder hereby irrevocably (a) appoints each Proxyholder as such
Shareholders' attorneys-in-fact, with an irrevocable instruction to the
Proxyholder (i) validly to tender such Shareholder's Option Shares into the
Offer if such Shareholder is so required by Section 3 of this Agreement, (ii)
properly to withdraw such Shareholder's Option Shares from the Offer if such
Shareholder is so required by Section 3 of this Agreement, and (iii) to execute
any instrument of transfer and/or other documents and do all such other acts and
things as may in the opinion of the Proxyholder be necessary or expedient for
the purpose of, or in connection with, tendering or withdrawing such Option
Shares into or from the Offer, to the extent required in Section 3; and (b)
agrees not to exercise or attempt to exercise any rights pertaining to the
Option Shares without the prior consent of Parent.
Section 6. Grant of Pledge and Security Interest. For the purpose of
securing the due and prompt performance of all the obligations of such
Shareholders under this Agreement, each Shareholder hereby irrevocably grants to
Merger Subsidiary a pledge and security interest in such Shareholder's Option
Shares, together with all proceeds thereof and dividends thereon.
Notwithstanding the provisions of the preceding sentence, unless and until any
Shareholder breaches the provisions of, or defaults in the performance of the
obligations under, this Agreement, Merger Subsidiary shall not have the right to
receive and/or retain any such proceeds and dividends. In order to perfect such
security interests, each Shareholder shall deliver to Merger Subsidiary, not
later than 5:00 p.m. New York time on the fifth business day following the date
of this Agreement, any and all stock certificates evidencing such Shareholder's
Option Shares. Parent shall have all the rights and remedies of a secured party
provided or permitted under the Uniform Commercial Code.
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Section 7. Other Covenants, Representations and Warranties. Each
Shareholder hereby represents and warrants to each of Parent and Merger
Subsidiary each of the following:
(a) Ownership of Option Shares. On the date hereof,
such Shareholder is the beneficial owner of the number of Option Shares
set forth opposite such Shareholder's name on Exhibit A. On the date
hereof, except as otherwise disclosed on Exhibit A, the number of
Option Shares set forth opposite such Shareholder's name on Exhibit A
constitutes all of the Shares owned by such Shareholder, except for any
Shares which (i) such shareholder intends to dispose of by gift to (x)
an immediate family member of such Shareholder, (y) a trust
substantially all of the beneficiaries of which are immediate family
members of such Shareholder, or (z) an organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or
(ii) are held by such Shareholder in a fiduciary capacity and with
respect to which such Shareholder does not have sole dispositive power.
Except as set forth on Exhibit A and any encumbrances and/or
restrictions identified in the Merger Agreement (none of which will be
violated by the transactions contemplated in this Agreement), such
Shareholder has the exclusive right to vote or dispose of (or exercise
the voting or disposition of) such Shareholder's Option Shares.
(b) Power, Binding Agreement. Each Shareholder and each
person executing this Agreement on behalf of a Shareholder has the
legal capacity, power and authority to enter into and perform all of
such Shareholder's obligations under this Agreement and the Merger
Agreement. The execution, delivery and performance of this Agreement by
such Shareholder or other signatory will not violate any other
agreement to which such Shareholder is a party including, but not
limited to, any voting agreement, Shareholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered
by such Shareholder and constitutes a valid and binding agreement of
such Shareholder, enforceable against such Shareholder in accordance
with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Shareholder is
a trustee whose consent is required for the execution and delivery of
this Agreement or the consummation by such Shareholder of the
transactions contemplated hereby. If such Shareholder is married and
such Shareholder's Option Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such Shareholder's
spouse, enforceable against such person in accordance with its terms.
Each of the Shareholders waives any rights he or she may have under
that certain Shareholders' Agreement, dated as of February 25, 1994, to
the extent the terms thereof are inconsistent with the provisions of
this Agreement, including, without limitation, any notice provisions.
(c) No Encumbrances. Except as applicable in connection
with the transactions contemplated in this Agreement and any
encumbrances and/or restrictions identified in the Merger Agreement or
on Exhibit A (none of which will be violated by the transactions
contemplated in this Agreement), such Shareholder's Option Shares and
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the certificates representing such shares are, and at all times during
the term hereof will be, free and clear of all liens, claims, security
interests, proxies, voting trusts and/or agreements, understandings or
arrangements and any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
Section 8. Shareholder Capacity. No person executing this Agreement who
is or becomes, during the term hereof, a director of Company makes any agreement
or understanding herein in his or her capacity as such director. Each
Shareholder signs solely in his or her capacity as the owner of, or the trustee
of a trust whose beneficiaries are the owners of, such Shareholder's Option
Shares.
Section 9. Indemnification. Subject to the limitations contained in this
Section 9, Parent and Merger Subsidiary shall indemnify, defend and hold
harmless each Shareholder against all losses, claims, damages, costs, expenses
(including attorney's fees and expenses), liabilities or judgments or amounts
that are paid in settlement or in connection with any threatened or actual
claim, action, suit, proceeding or investigation (collectively, "Losses") based
in whole or in part on, or arising in whole or in part out of, such
Shareholder's execution or performance of, or the consummation of the
transactions contemplated under, this Agreement. Notwithstanding any provision
of the preceding sentence to the contrary, neither Parent nor Merger Subsidiary
shall indemnify any Shareholder hereunder for any Losses based in whole or in
part on, or arising in whole or in part out of, (i) the breach of such
Shareholder's representation, warranty or covenant set forth in this Agreement,
other than any challenges to the enforceability of this Agreement based on
fiduciary duty arguments, (ii) any willful act which, to the knowledge of such
Shareholder, constituted a violation or breach of any statute, rule, regulation,
agreement or understanding which applies to such Shareholder or to which such
Shareholder is a party, or (iii) fraud by a Shareholder. Promptly upon any
Shareholder's receipt of written notice of any claim or the service of a summons
or other initial legal process for which indemnification is or could be claimed
hereunder, such Shareholder shall given written notice to Parent and shall
tender the defense of such claim to Parent. If Parent accepts the tender of
defense without a reservation of rights, then Parent shall control all aspects
of the defense and shall indemnify Shareholder in accordance with this Section
9, and shall not settle any such claim unless such settlement provides for a
full release of such Shareholder from such claim. In the event Parent does not
accept the tender of defense without a reservation of rights, then the
Shareholders may retain counsel satisfactory to them and Parent, and Parent
shall pay all reasonable fees and expenses of such counsel for the Shareholders
promptly as statements therefor are received, and Parent will use all reasonable
efforts to assist in the defense of any such matter; provided that Parent shall
not be liable for any settlement effected without its prior written consent,
which consent shall not unreasonably be withheld. The Shareholders as a group
may retain only one law firm to represent them with respect to each such matter
unless there is, under applicable standards of professional conduct, a conflict
which cannot reasonably be resolved on any significant issue between the
positions of any two or more Shareholders, in which event, additional counsel
may be retained to the extent required by such conflict. Parent agrees that all
rights to indemnification, including provisions relating to advances of expenses
incurred in defense of any action or suit, existing in favor of the Shareholders
hereunder shall continue in
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full force and effect for a period of not less than six years from the later of
the Closing or the termination hereof; provided, however, that all claims for
indemnification hereunder asserted or made within such period shall continue
until the resolution of such claims.
Section 10. Miscellaneous.
(a) Term. Except as otherwise expressly provided in
this Agreement this Agreement shall remain in effect until the first to
occur of (i) the later of (y) June 30, 1996 or (z) five business days
following the expiration or termination of the Offer in the event the
expiration date of the Offer is extended as a result of an Acquisition
Proposal, (ii) the acquisition by Parent, through Merger Subsidiary or
otherwise, of all the Option Shares, (iii) the termination of the
Merger Agreement pursuant to Section 10.01(iii) thereof due to a
material breach of any representation or warranty on the part of
Company set forth in the Merger Agreement or (iv) the termination of
the Merger Agreement pursuant to Sections 10.01(iv) or 10.01(vi)
thereof.
(b) Entire Agreement, No Third Party Beneficiaries;
Schedules. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof; and is not
intended to confer upon any Person other than the parties hereto or
thereto any rights or remedies hereunder.
(c) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned or
delegated by any of the parties hereto (by operation of law or
otherwise) without the prior written consent of the other parties,
provided that Parent may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary
of Parent, but no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such
obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated with respect to any one or more Shareholders, except upon
the execution and delivery of a written agreement executed by the
relevant parties hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given except, in the
case of mail, three days after being sent) by hand delivery, telegram,
telex or confirmed telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any overnight courier,
providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses:
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If to a Shareholder: At such Shareholder's address set forth on
Exhibit A hereto
with a copy to: PHILLIPS, LYTLE, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
and SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent: THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Corporate Planning
and Development
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, General Counsel
and Secretary
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(f) 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 terms and provisions of
this Agreement will nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to
any party hereto. Upon any such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the
parties hereto will 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
by this Agreement are consummated to the extent possible.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by such party of any
covenants or agreements contained in this Agreement will cause the
other party to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore, each of the parties
hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the
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remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy
to which it may be entitled at law or in equity.
(h) Remedies Cumulative. All rights, powers and
remedies provided under this Agreement or otherwise available in
respect hereof, whether at law or in equity, shall be cumulative and
not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
(i) No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof, whether at law or in equity, or
to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at
variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
(j) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York,
without regard to any applicable conflicts of law.
(k) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of
this Agreement.
(l) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all
of which, when taken together, shall constitute one and the same
Agreement.
(m) Expenses. Each party shall pay its own expenses incurred in
connection with this Agreement.
(n) Investment Intent. Merger Subsidiary represents and
warrants that it is acquiring the Option Shares for investment purposes
only and not with a view to resale or distribution thereof in violation
of the Securities Act of 1933, as amended, or the securities laws of
any state.
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IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
and each Shareholder has executed this Agreement, all as of the date first above
written.
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇
Vice President - Corporate Planning
and Development
SWACQ, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇
Vice President
SHAREHOLDER
By: ____________________________________
Name:
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IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and each Shareholder has executed this Agreement, all as of the
date first above written.
Parent
By: -------------------------------
Name:
Title:
Merger Subsidiary
By: -------------------------------
Name:
Title:
Marks Group
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▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Rubenfein
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▇▇▇▇ ▇▇▇▇▇ Foundation, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IIIea /s/ ▇▇▇▇▇▇ ▇▇▇▇
W60832 -----------------------------------
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IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and each Shareholder has executed this Agreement, all as of the
date first above written.
/s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇. 75,117
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25,556
- 3,000
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 22,556
------------------------------ -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(see attached) 30,044
------------------------------ -------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ -------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ -------------------------------
Hunter ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ▇.▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇ 2,887
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------ -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. No. 2.0.1 23,750
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Trustee
------------------------------ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ No. 3.0.2 42,840
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------ ----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee
13
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust
No. 4.0.3 No. ▇.▇.▇▇ 3,924
By By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------ ---------------------------
Trustee Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust
No. 2.0.4 9,116 No. ▇.▇.▇▇ 3,924
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇. By /s/ ▇.▇. ▇▇▇▇▇▇▇
------------------------------ ---------------------------
Trustee Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Wilton Trust
No. 3.0.5 55,818 No. 4.2.A
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇. By
------------------------------ ---------------------------
Trustee Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Wilton Trust
No. 4.0.6 No. 4.3.B
By By
------------------------------ ---------------------------
Trustee Trustee
▇.▇. ▇▇▇▇▇▇▇, ▇▇. Trust ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Wilton Trust
No. 2.2.A 1,358 No. 4.4.C
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By
------------------------------ ---------------------------
Trustee Trustee
▇.▇. ▇▇▇▇▇▇▇, ▇▇. Trust ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Wilton Trust
No. 2.3.B 1,358 No. 4.5.D
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By
------------------------------ ---------------------------
Trustee Trustee
▇.▇. ▇▇▇▇▇▇▇, ▇▇. Trust ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Wilton Trust
No. 2.4.C 1,358 No. 4.6.F
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By
------------------------------ ----------------------------
Trustee Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust
No. 3.2.AA 3,924 No. 2.0.W 3,675
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇. By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------ ----------------------------
Trustee Trustee
14
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust
No. 3.0.W 25,500
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust
No. 2.5.W 10,975
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
Trustee
15
IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and each Shareholder has executed this Agreement, all as of the
date first above written.
Parent
By: ---------------------------------
Name:
Title:
Merger Subsidiary
By: ---------------------------------
Name:
Title:
Marks Group
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Rubenfein
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Foundation, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- -----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
--------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇
16
IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and each Shareholder has executed this Agreement, all as of the
date first above written.
Parent
By: --------------------------------
Name:
Title:
Merger Subsidiary
By: --------------------------------
Name:
Title:
Marks Group
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Rubenfein
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Foundation, Inc.
By: --------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
17
IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and each Stockholder has executed this Agreement, all as of the
date first above written.
The JFK Annuity Trust II The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By:
------------------------------- ------------------------------
▇▇▇▇ ▇▇▇▇▇, as trustee Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President - Corporate
Planning & Development
The JFK Annuity Trust III
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇, as trustee
By:
------------------------------
Name:
The ▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Trust No. IV Title:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇, as trustee The 1995 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
GRAT #2
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- By:
▇▇▇▇▇ ▇▇▇▇▇ ------------------------------
Trustee
18
IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and each Stockholder has executed this Agreement, all as of the
date first above written.
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
By:
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President - Corporate
Planning & Development
By:
------------------------------
Name:
Title:
The 1995 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
GRAT #2
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE
-------------------------------
Trustee
/s/ TRUSTEE
-------------------------------
Trustee
19
IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and each Shareholder has executed this Agreement, all as of the
date first above written.
Parent
By:
---------------------------------
Name:
Title:
Merger Subsidiary
By:
---------------------------------
Name:
Title:
Marks Group
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Rubenfein
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Foundation, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IIICa /s/ ▇▇▇▇▇▇ ▇▇▇▇
W60832 ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇
20
IN WITNESS WHEREOF, Parent and Merger Subsidiary have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, and such Shareholder has executed this Agreement, all as of the
date first above written.
Parent
By:
--------------------------------
Name:
Title:
Merger Subsidiary
By:
-------------------------------
Name:
Title:
SHAREHOLDER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------------
Name:
21
EXHIBIT A
---------
NAME AND ADDRESS SHARES
---------------- ------
JFK Annuity Trust II 254,438
JFK Annuity Trust III 320,788
▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Trust No. IV 1,420,023
▇▇▇▇▇ ▇. ▇▇▇▇▇ 73,812
The address for all the above is: ---------
c/o United Coatings, Inc. 2,069,061
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ 116,666
▇▇▇▇▇ ▇▇▇▇▇ 133,333
▇▇▇▇▇▇▇ ▇▇▇▇▇ 116,666
▇▇▇▇▇ ▇▇▇▇▇ 116,666
▇▇▇▇▇▇▇▇▇ Rubenfein 116,666
▇▇▇▇▇▇▇▇ ▇▇▇▇ 18,066
▇▇▇▇▇▇ ▇▇▇▇ 109,766
▇▇▇▇▇ ▇▇▇▇ 72,216
▇▇▇▇ ▇▇▇▇▇▇▇ 60,233
▇▇▇▇▇ ▇▇▇▇▇▇▇ 121,750
▇▇▇▇▇▇▇ ▇▇▇▇ 108,750
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 156,117
▇▇▇▇▇ ▇▇▇▇▇▇ 125,000
▇▇▇▇▇▇ ▇▇▇▇▇ 125,000
▇▇▇▇ ▇▇▇▇▇ Foundation 37,000
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 72,216
The address for all the above is: ---------
c/o ▇▇▇▇ ▇▇▇▇▇ & Co., Inc. 1,606,111
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. 475,000
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The 1995 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, GRAT #2, c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 89,305
Williamhouse-Regency, Inc., ---------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 564,305
▇.▇. ▇▇▇▇▇▇▇, ▇▇. 75,117
▇.▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇ 2,887
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 22,556
▇.▇. ▇▇▇▇▇▇▇, ▇▇. III 30,044
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust No. 2.0.1 23,750
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust No. 3.0.2 42,840
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust No. 2.0.4 9,116
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust No. 3.0.5 55,818
▇.▇. ▇▇▇▇▇▇▇, ▇▇. Trust No. 2.2.A 1,358
▇.▇. ▇▇▇▇▇▇▇, ▇▇. Trust No. 2.3.B 1,358
22
- 2 -
NAME AND ADDRESS SHARES
---------------- ------
▇.▇. ▇▇▇▇▇▇▇, ▇▇. Trust No. 2.4.C 1,358
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust No. 3.2.AA 3,924
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust No. ▇.▇.▇▇ 3,924
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust No. ▇.▇.▇▇ 3,924
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust No. 2.0.W 3,675
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust No. 3.0.W 25,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust No. 2.5.W 10,975
The address for all the above -------
(except ▇.▇. ▇▇▇▇▇▇▇ III) is: 318,124
c/▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ United Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
The address for ▇.▇. ▇▇▇▇▇▇▇, III is:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇-▇▇▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, c/▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ United Inc., 4,000
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇.▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Cohen, Swados, Wright, Hanifin, 2,050
Bradford & ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Exceptions
----------
1. ▇▇. ▇▇▇▇▇▇▇▇ owns a total of 475,000 shares
2. List does not include shares beneficially owned as a fiduciary of
employee benefit plans
3. The shares held by the Marks family, Boas family, Claster family,
Ms. Rubenfein, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇▇
Foundation are subject to a Voting Trust and Power of Attorney.
4. Does not include shares as to which any such person is a
co-trustee.
