1
EXHIBIT 10.29
STOCK POOLING AGREEMENT
This Stock Pooling Agreement ("Agreement") is made as of the Effective
Date (as defined in Article 12.01 below) by and among XXX X. XXXXXX, INC., a
Pennsylvania corporation (the "Company"), and those holders of the non-publicly
traded Common Shares of the Company who have executed this Agreement and are
identified on Schedule A of this Agreement (singly, a "Pool Member" and
collectively, the "Pool Members").
WHEREAS, the capital stock of the Company consists of two series of common
stock: (1) Series A Common Shares, which currently are publicly traded on the
NASDAQ Stock Market ("Series A Shares") and (2) Common Shares, which are not
publicly traded ("Common Shares); and
WHEREAS, the Company is engaged in an effort to return to profitability
and desires to enhance its ability to raise capital in connection with
management's strategic plan; and
WHEREAS, the Company and certain of its shareholders believe that the
Company's efforts to return to profitability and to raise capital would be
assisted by reducing the potential for shareholder disagreement and by
promoting unity, stability and continuity in decision-making; and
WHEREAS, the Pool Members desire to ensure that all Common Shares now held
or hereafter acquired by them (the "Pooled Shares") be voted together on all
matters, in order to (1) promote unity among the Pool Members; (2) minimize the
potential for disruption in matters to be voted upon by shareholders of the
Company, and (3) promote stability and continuity in the management of the
Company; and
WHEREAS, the Pool Members desire to provide for certain restrictions on
the transferability of the Common Shares owned by the Pool Members; and
WHEREAS, the Board of Directors of the Company has determined that this
Agreement is in the best interest of the Company and has, therefore, approved
it;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and intending to be legally bound, the parties hereby agree as follows:
2
Article 1. Voting Agreement
1.01 Shares to be voted. Each Pool Member shall complete Exhibit "A"
attached hereto with respect to the Pooled Shares held by that Pool Member,
upon which such Pool Member shall become a party to this Agreement and be
legally bound by this Agreement. Each Pool Member warrants and represents
that:
(a) he, she or it is record or beneficial owner of the number of the
Company's Common Shares set forth opposite the Pool Member's name on
Exhibit "A" attached to this Agreement, and that those shares are all of
the Common Shares of which he, she or it is the record or beneficial
owner;
(b) he, she or it has the full and complete right to vote such Common Shares
at any meeting of shareholders of the Company at which a vote of
shareholders is taken, and to execute and deliver a written consent with
respect to such shares; and
(c) no other person has any right, title or interest in or to such Common
Shares (including but not limited to any right to vote or to control or
direct the voting of such Common Shares), which would prevent such Pool
Member from carrying out any obligations imposed by this Agreement,
(d) any Common Shares of the Company which he, she or it hereafter acquires,
of record or beneficially, shall become Pooled Shares subject to all of
the terms of this Agreement.
(e) he, she or it has entered into this Agreement voluntarily and with full
knowledge of the rights and obligations created under this Agreement,
(f) he, she or it has full right and power to execute this Agreement, that
any action necessary to authorize such execution has been taken, and that
this Agreement has been duly executed and delivered and constitutes his,
her or its binding agreement, enforceable against him, her or it.
1.02. Voting of the Pooled Shares.
(a) At any meeting of the shareholders of the Company at which a vote of
shareholders is taken (and in any written consent of shareholders of the
Company in lieu of such a meeting), all of the Pooled Shares shall be
voted in accordance with the later
2
3
to occur of: (i) the majority vote of the Pooled Shares, determined by
separate vote of the Pooled Shares (a "Pool Vote") conducted in the
manner set forth in this Article 1.02, or (ii) voting instructions
contained in a written notice (a "Pool Majority Notice") which is (A)
executed by Pool Members entitled to vote more than fifty percent (50%)
of the Pooled Shares and (B) received by the Secretary of the Company at
any time before a vote of shareholders of the Company is taken (or before
a written consent of shareholders of the Company becomes effective).
(b) At least 20 days before the date of any shareholders' meeting at which a
vote of shareholders is taken, and as far as practicable in advance of any
solicitation of action by written consent of shareholders, the Company
shall distribute to each Pool Member (1) notice of any matter on which
such vote is to be taken or written consent is to be solicited, (2) any
information which would be required to be submitted to shareholders of the
Company in connection with such vote, or solicitation of consent, and (3)
a form of ballot on which the Pool Member can record the vote of the
Common Shares of the Pool Member on the matter. Upon written request, the
Company shall also provide a Pool Member, as promptly as practicable, with
any additional information which the Company would be required to provide
upon written request to any shareholder of the Company;
(c) Within 15 days after receipt of the notice and ballot described in
Article 1.02(b) above, each Pool Member who wishes to vote in the Pool
Vote shall complete and execute the ballot and return it to the Secretary
of the Company. The ballot shall clearly indicate how the Common Shares
of the Pool Member are voted on the matters described in the notice,
including any abstention on any matter. Any Pool Member who fails to
timely return a ballot or whose ballot is not completed in accordance with
this Article 1.02(c) shall be deemed to have abstained from the Pool Vote.
(d) The Company shall tabulate the Pool Vote according to the ballots of the
Pool Members received within the time specified in Article 1.02(c) above.
The Company shall be entitled to rely on any information set forth in a
ballot, including the authenticity of any signature on the ballot, and
shall be permitted, but not required, to make any investigation or
examination beyond the face of a ballot.
(e) In any Pool Vote under this Article 1.02, no quorum or other minimum
number of Pooled Shares need be voted; and the action
3
4
chosen by the vote of the majority of those Pooled Shares which have been
properly voted by ballot in the Pool Vote shall constitute the majority
vote of the Pooled Shares. Pooled Shares which are not voted, or
respecting which a Pool Member has abstained (or been deemed to have
abstained) shall not be counted in determining the number of Pooled
Shares voted in a Pool Vote under this Article 1.02.
(f) At the time of execution of this Agreement each Pool Member shall execute
and deliver to the Secretary of the Company, an irrevocable Proxy, in the
form attached to this Agreement as Exhibit "B", granting to the Company
(in such capacity, the "Proxyholder"), the right to vote, in any vote of
shareholders of the Company (and to provide consent of, in any
solicitation of consent from shareholders of the Company) all Common
Shares held by that Pool Member, in accordance with this Section 1.02. At
any meeting of shareholders of the Company at which a vote is taken (and
in response to any solicitation of consent of shareholders), the
Proxyholder shall cast the vote (or provide the consent) of all Pooled
Shares in accordance with the vote of the Pooled Shares, determined in
accordance with this Section 1.02; provided, however, that if, after a
Pool Vote is taken, a Pool Majority Notice is received by the Secretary of
the Company at any time before a vote of shareholders of the Company is
taken (or before a written consent of the shareholders of the Company is
effective), the Proxyholder shall cast the vote (or provide the consent)
of all Pooled Shares in accordance with the voting instructions contained
in the Pool Majority Notice, even if those instructions differ from the
vote of the Pooled Shares. If at any meeting of shareholders of the
Company, a motion is properly made for a vote of shareholders on any issue
which has not been submitted to Pool Members for a Pool Vote, the Company
shall, to the extent permitted by law, postpone such vote until a vote of
Pool Members can be held or a Pool Majority Notice can be obtained.
(g) No Pool Member shall vote (or authorize or permit the vote of) any Pooled
Shares on any matter except in conformity with this Section 1.02, and the
Company shall not recognize or treat as valid any purported vote not in
compliance with the terms of this Agreement.
(h) The Company's obligations under this Article 1.02, including the
Company's voting of the Pooled Shares as Proxyholder under Article
1.02(f), shall be purely administrative and ministerial. The Company
shall not exercise any discretion in its role as Proxyholder, but shall be
bound to vote those
4
5
shares strictly in accordance with the terms of this Article 1.02.
Article 2. Provisions Restricting Transfer of Shares
2.01. Restrictions on Transfer.
(a) No Pool Member shall sell, assign, transfer, convey, give, donate, pledge
or otherwise encumber or dispose of any Pooled Shares or any interest
therein now held or hereafter acquired by him, her or it (collectively a
"transfer"), except by operation of law or as provided in this Agreement.
(b) Any purported transfer of Pooled Shares not in accordance with the
provisions of this Agreement shall be void and ineffectual and shall not
operate to transfer any interest or title to the purported transferee.
The Company shall not cause or permit any transfer of any of the Pooled
Shares to be registered on its books unless such transfer is made in
accordance with the terms of this Agreement. The Company shall be
protected in relying on the record of shareholders maintained by it or on
its behalf for all purposes, notwithstanding any notice of any purported
transfer to the contrary. The Company shall require any permitted
transferee of Pooled Shares (including, without limitation, a transferee
pursuant to Article 2.04) to become a party to this Agreement by an
instrument satisfactory to the Company in form and substance, as a
condition to any transfer.
2.02. Transfers by Operation of Law. If any Pooled Shares are transferred
by operation of law, (e.g. in the event of the bankruptcy or incapacity of a
Pool Member) the transferee shall receive such Pooled Shares subject to all of
the provisions of this Agreement, including but not limited to the rights
granted to the Company and others herein to acquire any such Pooled Shares.
2.03 Transfers Between Pool Members. Any Pool Member may freely transfer
any of that Pool Member's Pooled Shares to any other Pool Member (or to a trust
of which all the beneficiaries of such Pooled Shares are Pool Members or their
issue), by gift, sale or otherwise, with or without consideration, in any
manner or combination, and without the prior approval of any other Pool Member
or the Company; provided, however, that the Pooled Shares so transferred shall
remain subject to all of the terms of this Agreement, without any further
action of the Company or the Pool Members. In the event of any transfer to a
trust, the trust shall, as a condition precedent to such transfer, agree to be
bound by all of the terms of this Agreement.
5
6
2.04. Transfer By Descent/Distribution.
(a) Any Pool Member may freely transfer any of that Pool Member's Pooled
Shares by will, without the prior approval of any other Pool Member or the
Company, and the shares of a deceased Pool Member shall pass according to
his/her will (or according to applicable intestacy laws should the Pool
Member die without a will), subject, however, to the terms of this
Agreement.
(b) Any Pool Member that is a trust or Partnership may distribute Pooled
Shares held by it to any beneficiary of the trust or partner of the
partnership, in accordance with the terms of the trust or partnership,
subject, however, to the terms of this Agreement.
2.05. Other Transfer of Pooled Shares.
(a) If any Pool Member (the "Selling Pool Member") wishes to transfer any
Pooled Shares (the "Offered Shares") other than through a transfer
permitted under Articles 2.03 or 2.04 above, that Pool Member shall first
give written notice of intention to transfer ("Notice of Sale") to the
Secretary of the Company. The Notice of Sale shall specify the number of
Offered Shares and shall state whether the Selling Pool Member wants to
receive consideration in the form of (i) cash at the price per share of
the Company's Series A Shares on the Closing Date (as defined below in
Article 2.01(d)) or (ii) an equal number of shares of the Company's Series
A Shares. The specified consideration shall be either all cash or all
Series A Shares. Within twenty (20) days after the Secretary's receipt of
the Notice of Sale, the Company will furnish a copy of the Notice of Sale
to each of the other Pool Members (the "Non-Selling Pool Members").
(b) Within 20 days after his, her or its receipt of a Notice Of Sale, (1)
each Non-Selling Pool Member who wishes to purchase any of the Offered
Shares for the specified consideration shall give written notice (the
"Pool Member Purchase Notice") to the Selling Pool Member and to the
Secretary of the Company. The Pool Member Purchase Notice shall specify
the number of the Offered Shares, which the Non-Selling Pool Member wishes
to purchase. The Pool Member Purchase Notice may specify the purchase of
all or any portion of the Offered Shares.
6
7
(c) Each Non-Selling Shareholder who timely provides a Pool Member Purchase
Notice shall have the right to purchase the lesser of (i) the number of
Offered Shares determined by multiplying the total number of Offered
Shares by a fraction, the numerator of which shall be the total number of
Pooled Shares held by that Non-Selling Pool Member, and the denominator of
which shall be the total number of Pooled Shares held by all Non-Selling
Pool Members who timely provided Pool Member Purchase Notices; or (ii) the
number of Offered Shares set forth in that Non-Selling Pool Member's
Purchase Notice. If only one Non-Selling Pool Member timely provides a
Pool Member Purchase Notice, that Pool Member shall have the right to
purchase up to all of the Offered Shares.
(d) Closing on the sale of the Offered Shares shall be held, at 10:00 a.m.,
at the Company's headquarters on the date which is sixty-one (61) days
after the Company has received the Notice of Sale, or if that date is not
a business date on which the Company is open for business, on the first
such business date thereafter (the "Closing Date"). Any of the Offered
Shares which are not purchased by Non-Selling Pool Members shall be
purchased at the Closing by the Company.
(e) The purchase price to be paid at Closing for each Offered Share purchased
for cash shall be the closing price per share of the Series A Shares
(NASDAQ symbol: WSTNA) as published in the Wall Street Journal on the
trading day immediately before the Closing Date. The purchase price to be
paid at Closing for each Offered Share purchased for Series A Shares shall
be one Series A Share, appropriately adjusted to reflect any stock splits,
stock dividends, or other reclassifications or combinations of the Common
Shares or the Series A Shares which was not effected with respect to the
other series of Stock.
(f) If the purchaser of Offered Shares is a Pool Member the purchase price
for the Offered Shares shall be paid in cash or Series A Shares as
specified in the Notice of Sale. If the purchaser of Offered Shares is
the Company, and the Notice of Sale specifies that the consideration is to
be Series A Shares, the purchase price for the Offered Shares shall be
paid in Series A Shares. If the purchaser of the Offered Shares is the
Company, and the Notice of Sale specifies that the consideration is to be
cash, the purchase price may be paid, at the sole discretion of the
Company, in cash or Series A Shares, or any combination of cash or Series
A Shares.
(g) At Closing the Selling Pool Member shall deliver to the purchaser
certificates representing the Offered Shares, duly
7
8
endorsed for transfer, free and clear of any liens, restrictions or
encumbrances (except those arising from this Agreement), and (if required
by the purchaser) with signature guaranteed, and accompanied by all
documents necessary to effect transfer of the Offered Shares and the
purchaser or purchasers shall deliver the consideration therefor required
by this Agreement.
(h) The Company shall, in a timely manner, take all legally permissible
action which is necessary for the Company to take in order to make Series
A Shares, received by a Selling Pool Member in exchange for Pooled Shares,
freely tradable to the extent permitted by law or regulation, including
the limitations of SEC Rule 144. After such exchange of Pooled Shares for
Series A Shares, however, a Selling Pool Member shall, at all times, limit
sales of such Series A Shares in accordance with the volume resale
limitations of SEC Rule 144, even if that Selling Pool Member is not
otherwise subject to the requirements of SEC Rule 144.
2.06. Permitted Transferee of Pooled Shares Subject to Agreement.
(a) Any person or entity, other than the Company, who receives Pooled Shares
in a transfer under Articles 2.02 through 2.05 above (a "Permitted
Transferee"), shall (i) receive such shares subject to all of the terms of
this Agreement, including but not limited to the Voting Agreement under
Article 1.02 and the restrictions on transfer set forth in this Article 2,
and (ii) immediately be a Pool Member, without further action by the
Company or the other Pool Members.
(b) Upon the permitted transfer of Pooled Shares, a Permitted Transferee
shall promptly notify the Secretary of the Company of the transfer, and
shall include in that notice all information concerning the transferee
listed in Exhibit "A", including the transferee's mailing address for the
purpose of receiving notices under this Agreement. Upon receipt by the
Secretary of the Company of such notice, Exhibit "A" attached to this
Agreement shall be deemed amended to provide that the Permitted Transferee
shall be listed as a Pool Member, and any Pooled Shares so transferred
shall be listed as the Pooled Shares of the Permitted Transferee and
subtracted from the Pooled Shares of the transferor.
(c) Until the Secretary of the Company has received notice from a Permitted
Transferee in accordance with Article 2.06(b) above, accompanied by a duly
executed proxy in the form of Exhibit B
8
9
attached to this Agreement: (i) neither the Company nor any Pool Member
shall be required to send to the Permitted Transferee any notice or other
communication required to be sent to Pool Members under this Agreement,
including any notice of a Pool Vote, any ballot for a Pool Vote or any
Notice of Sale; (ii) a Pool Vote or transfer of Pooled Shares may proceed
under the terms of this Agreement and will be valid, without the
participation of the Permitted Transferee; and (iii) the transferee shall
have no right to vote or transfer any Pooled Shares.
(d) Any person who ceases to hold any Pooled Shares shall no longer be a Pool
Member.
Article 3. Remedies.
3.01. Equitable Relief. The parties acknowledge that the Common Shares
are unique, and that any violation of this Agreement cannot be compensated for
in damages alone. Therefore, in addition to all of the other remedies which
may be available under applicable law, any party hereto shall have the right to
equitable relief, including, without limitation, the right to enforce
specifically the terms of this Agreement by obtaining injunctive relief against
any violation or non-performance hereof.
Article 4. Governing Law.
4.01. This Agreement will be governed by and construed in accordance with
the internal laws of the Commonwealth of Pennsylvania (and United States
federal law, to the extent applicable) without giving effect to principles of
conflicts of law.
Article 5. Notices.
5.01. All notices, offers, acceptances and other communications provided
by a party to another party shall be in writing and shall be delivered by first
class, certified mail, return receipt requested, or by reputable overnight
express mail service (such as Federal Express), postage prepaid, to the Company
at the following address:
0 Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000-0000
Attention: Corporate Secretary
and to each Pool Member at the address set forth on Exhibit "A", or at such
other address as shall have been specified in a notice
9
10
given hereunder. Any notice, offer, acceptance and other communication
provided by any party to another party shall be deemed to have been received
and shall be legally effective for all purposes three business days after it is
deposited in the mail or provided to an overnight delivery carrier in the
manner set forth above in this Article 5; except however for a Pool Majority
Notice, which shall only be effective upon receipt by the secretary of the
Company.
Article 6. Legends.
6.01. Within thirty (30) days after the effective date of this Agreement,
each certificate for Common Shares held by any Pool Member shall be delivered
to the Company by each Pool Member and shall be marked with the following
legend:
The shares represented by this certificate are subject to
certain voting restrictions and transfer restrictions,
including the option to purchase given to others, and the
transfer of this certificate and the shares it represents
is restricted, all as more fully set forth in an Agreement
between this Company and certain of its shareholders
effective on _________, 1997, as it may be amended from
time to time, the terms of which are incorporated herein by
reference, and a copy of which may be inspected at the
principal office of the Company.
Article 7. Arbitration.
7.01. In the event of any dispute whatsoever arising as to the
interpretation of any provision of this Agreement or arising as to the rights,
duties or obligations of any of the parties to this Agreement in connection
with any provision of this Agreement, that dispute shall be submitted to
arbitration in Philadelphia, Pennsylvania in accordance with the rules then
obtaining of the American Arbitration Association. Any decision of the
Arbitrator(s) shall be binding on all parties in interest and judgment upon
the award rendered may be entered in any court having jurisdiction thereof.
The prevailing party in any such arbitration shall be entitled to recover, in
addition to all other appropriate relief, the cost and expenses incurred by
that party (including reasonable counsel fees) in connection with obtaining or
enforcing the arbitration award.
Article 8. Counterparts.
10
11
8.01. This Agreement may be executed in any number of counterparts, each
of which, after the Effective Date, shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. An executed counterpart of
this Agreement and all amendments hereto shall be kept at the principal office
of the Company and shall be made available for inspection by any interested
party during regular business hours.
Article 9. Assignment.
9.01 Neither the Company nor any Shareholder shall assign, transfer,
pledge or otherwise encumber or dispose of its or his rights or obligations
under this Agreement except as otherwise provided herein. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
respective parties hereto, and their personal representatives, estates,
successors, and assigns, including any transferee of the Pooled Shares subject
to this Agreement.
Article 10. Severability.
10.01. If any provision of this Agreement is held to be invalid or
unenforceable, after exhaustion of all appeals, by any award or judgment of a
tribunal of competent jurisdiction, it shall to that extent be omitted, but the
remainder of this Agreement shall not be affected by such judgment or award,
and the Agreement shall be carried out as nearly as possible according to its
original terms and intent.
Article 11. Entire Agreement; Amendment.
11.01. This writing represents the entire Agreement and understanding of
the parties with respect to the subject matter hereof and supersedes all prior
written or oral agreements, representations and understandings relating to the
subject matter hereof.
11.02. Other than as expressly set forth in this Agreement, the rights,
privileges and priorities of any of the Common Shares or Series A Shares held
by Pool Members (including but not limited to the right to call, or participate
in a call, for a special shareholders meeting) shall not be affected by this
Agreement; and the written consent of the Company and of all Pool Members shall
be required for any amendment or modification of this Agreement which would
have any such effect. Article 2.05 of this Agreement may not be amended or
modified without the consent of the Company and all Pool Members.
11
12
11.03 Except as set forth in Article 11.02, this Agreement may be amended
or modified by the written consent of the holders of eighty-five (85%) of all
Pooled Shares at the time of the amendment or modification; provided, however,
that any amendment or modification that alters the rights or obligations of the
Company as set forth in this Agreement shall also require the written consent
of the Company.
Article 12. Effective Date; Termination.
12.01. This Agreement shall become effective on the date (the "Effective
Date") on which it has been (a) approved by the Company's Board of Directors;
and (b) signed by the holders of Pooled Shares entitled to cast fifty (50%)
percent or more of the votes entitled to be cast by all shareholders of the
Company in any vote of shareholders of the Company; and (c) duly executed by
the Company's Chief Executive Officer. Until the Effective Date, this
Agreement shall have no effect and shall create no rights or obligations on the
part of any signatory. If this Agreement does not become effective before
January 1, 1998, it shall be null and void for all purposes. Any holder of
Common Shares of the Company who wishes to become a Pool Member by signing this
Agreement must do so before January 1, 1998, and any holder of Common Shares
who does not execute this Agreement before January 1, 1998, may not do so and
may not become a Pool Member, other than (a) through a transfer permitted under
Article 2 above or (b) with the written approval of the Company and of Pool
Members holding more than fifty (50%) of the Pooled Shares.
12.02. This Agreement shall terminate, and be null and void thereafter, on
the earlier to occur of (a) December 31, 2002, (b) thirty (30) days after the
Company receives notice signed by Pool Members holding more than 50% of the
Pooled Shares (at the time of the notice) that those Pool Members desire to
terminate this Agreement, or (c) the date on which the votes entitled to be
cast on all Pooled Shares constitute less than fifty (50%) percent of the votes
entitled to be cast by all shareholders of the Company in any vote of
shareholders of the Company; provided, however, that within thirty (30) days
after termination of this Agreement, any Pool Member at the time of such
termination may deliver a Sale Notice to the Company, in accordance with
Article 2.05, and the Company (but not any other Pool Member) shall thereupon
be required to proceed with the purchase of the Offered Shares in accordance
with the provisions of Article 2.05 (d)(e) and (f), and no Pool Member shall
have any right or obligation to purchase any of the Offered Shares. Upon
termination of this Agreement, the Proxies given to the Company, under Article
1.02(f) above, shall terminate
12
13
immediately and any Pool Vote or Pool Majority Notice shall be void and of no
effect in connection with any vote of shareholders of the Company held after
the effectiveness of such termination (and any consent of shareholders with an
effective time after such termination).
Article 13. General.
13.01. Whenever in this Agreement the Secretary of the Company is
identified the Company may, by notice twenty (20) days notice to all Pool
Members substitute in place of the Secretary any other officer of the Company.
13.02. The Company's Board of Directors, any Director of the Company
and/or any member of management of the Company may, at any time, discuss the
business of the Company with any Pool Member or group of Pool Members to (among
other reasons) informally determine the position of such Pool Member(s) on any
issue affecting the Company. Nothing in this Agreement shall obligate the
Company or any Pool Member to disclose such discussion, or the information
conveyed during such discussion, to any other Pool Member. If, at any time,
the Company, in connection with this Agreement, discloses to a Pool Member
information which could be regarded as material, non-public information
concerning the Company, the Company will so notify the Pool Member.
Thereafter, that Pool Member will treat such information as material,
non-public information and will comply with all obligations under federal and
state securities laws, including but not limited to prohibition on xxxxxxx
xxxxxxx.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth below.
XXX X. XXXXXX, INC.
By: ___________s/_____________ Date:__1/2/98____________
President and
Chief Executive Officer
COUNTERPART SIGNATURE PAGES OF THE POOL MEMBERS ARE ATTACHED HERETO
13
14
EXHIBIT A
Signature Pages to Stock Pooling Agreement (the "Agreement") dated as of
the Effective Date (as defined in Article 12.01 of the Agreement) among XXX X.
XXXXXX, Inc. and the parties identified below.
The undersigned hereby executes and delivers the Agreement, authorizes
this signature page to be attached to a counterpart of the Agreement and agrees
to be bound by the Agreement.
NAME/TAX ID NUMBER: _____________________
SIGNATURE: ____________________________
ADDRESS: ___________________________________________
NUMBER OF COMMON SHARES: ________________
DATE: ________________
15
Exhibit B
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to Xxx X. Xxxxxx, Inc. (the
"Company" or the "Proxyholder"), an irrevocable proxy, to vote and to execute
and deliver written consents with respect to, all Common Shares of the Company
now or hereafter held by the undersigned beneficially or of record (the "Common
Shares") to the same extent and with the same effect as the undersigned might
or could do under any applicable laws or regulations governing the rights and
powers of shareholders of a Pennsylvania corporation, in connection with any
matter requiring or otherwise submitted to a vote of the Company's
shareholders, including, without limitation, the election of directors,
regardless of (i) whether such vote is sought at an annual or special meeting
of the Company's shareholders, or by written consent in lieu of a meeting, or
otherwise, or (ii) whether such vote is to be cast in person, or by proxy, or
as otherwise permitted by law; provided, however, that the Proxyholder shall
vote the Common Shares in accordance with the requirements of the Stock Pooling
Agreement dated as of the Effective Date (as defined in Article 12.01 of that
Agreement), as amended or supplemented from time to time, by and among the
Company, the undersigned and certain other holders of Common Shares of the
Company (the "Stock Pooling Agreement").
The Common Shares subject to this proxy shall be voted strictly in
accordance with the provisions of the Stock Pooling Agreement by the Corporate
Secretary of the Company or other person designated by the Company's Board of
Directors; and the Proxyholder shall have no discretion to vote the Common
Shares in any manner other than as determined under the terms of the Stock
Pooling Agreement.
The undersigned hereby affirms that this proxy is being delivered to the
Company pursuant to the Stock Pooling Agreement and, as such, is coupled with
an interest and is irrevocable. Under the circumstances as provided in the
Stock Pooling Agreement, a copy of which is on file with the corporate records
of the Company, this proxy may, however, be terminated.
This proxy revokes any other proxy granted by the undersigned at any time
prior to the date hereof with respect to any of the Common Shares.
__________________________________
Date: , 1997
