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Exhibit 2.3
AGREEMENT IN SUPPORT OF ASSET PURCHASE AGREEMENT
This Agreement in Support of Asset Purchase Agreement ("Agreement") is
hereby made and entered this 10th day of November, 1997 by and among the
undersigned Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx and Xxxx Xxxxx
(collectively, the "Stockholders," and severally as the context requires a
"Stockholder"), and DCI/DWC Acquisition Corp., a Delaware corporation (the
"Buyer"), who agree as follows:
WHEREAS, Buyer is simultaneously entering into that certain Asset
Purchase Agreement (the "Asset Purchase Agreement") among Buyer and Danvid
Company, Inc. ("Danvid") and Danvid Window Company ("DWC") pursuant to which
Buyer will acquire substantially all the assets of Danvid and DWC;
WHEREAS, the Stockholders are all of the Stockholders of Danvid and DWC
and have acknowledged the direct benefit to be received by them by reason of the
transactions contemplated by the Asset Purchase Agreement; and
WHEREAS, Buyer is entering into the Asset Purchase Agreement in
reliance on the representations, warranties and covenants of Stockholders in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, Buyer's
reliance, the benefits inuring to the Stockholders by reason of the Asset
Purchase Agreement, and other full, fair and adequate consideration, it is
agreed as follows:
1. DEFINITIONS. All terms appearing herein as defined terms and not
expressly defined herein shall have the same meaning assigned to them in the
Asset Purchase Agreement.
2. JOINT AND SEVERAL LIABILITY. The Stockholders have agreed that they
shall be jointly and severally liable, together with the Sellers and each of the
other Stockholders, for each and every representation, warranty, covenant and
agreement made by the Sellers in the Asset Purchase Agreement as though a
signatory party thereto. Each of the Stockholders acknowledge full, fair,
complete and adequate consideration for the obligation to be bound to each of
the representations, warranties, covenants and agreements of the Sellers set
forth in the Asset Purchase Agreement and agree to be bound thereby.
Without limiting the generality of the foregoing, each of the
Stockholders, jointly and severally with the Sellers, makes each of the
representations, warranties and covenants of the Sellers set forth in Sections
3(a), 4, 5 and 6 of the Asset Purchase Agreement and agree that each of the
Stockholders is jointly and severally bound, together with the Sellers, for each
and every of the indemnity obligations of the Sellers set forth in Section 8 of
the Asset Purchase Agreement. The Stockholders acknowledge that certain of the
representations and warranties speak as of the date hereof and are to be
affirmed and effectively reconfirmed as accurate as of the Closing. Each of the
Stockholders has reviewed the Disclosure Schedule and represents and warrants
that the Disclosure Schedule sets forth all of the qualifications to
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the representations and warranties of Section 4 of the Asset Purchase Agreement
in accordance with the terms thereof.
3. TAX MATTERS. Notwithstanding the generality of the foregoing,
Stockholders acknowledge that they shall be jointly and severally liable,
together with the Sellers, for any and all Liabilities for Taxes of Danvid and
DWC incurred by the Buyer and any and all Adverse Consequences associated with
any Taxes imposed on or relating to the business of Danvid, DWC or any of the
Stockholders, except liabilities expressly assumed by the Buyer pursuant to the
Asset Purchase Agreement and included among the Assumed Liabilities.
4. NATURE OF OBLIGATIONS. The representations, warranties, and
covenants of the Sellers and the Stockholders in the Asset Purchase Agreement
and, in turn, this Agreement, are joint and several obligations. Each
Stockholder acknowledges that the Stockholder will be responsible for the
entirety of any Adverse Consequences the Buyer may suffer as a result of any
breach of the Asset Purchase Agreement by the Sellers.
5. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the state of Texas without regard to the
effect of any choice of law provision or rule (whether of the state of Texas or
any other jurisdiction) that would cause the application of laws of any
jurisdiction other than the state of Texas. Jurisdiction and venue in any action
arising hereunder shall be in a court of competent subject matter jurisdiction
in Dallas County, Texas, and each of the parties consents to jurisdiction
therein.
6. NOTICES. All notices, requests, demands, claims, and other
communications under this Agreement will be in writing. Any notice, request,
demand, claim or other communication hereunder shall be deemed duly given if
personally delivered or, two days after mailing if mailed by Registered or
Certified Mail, return receipt requested, postage prepaid and addressed to the
intended recipient at the address set forth beneath their signatures below.
7. CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption shall arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement.
8. INCORPORATION BY REFERENCE. This Agreement incorporates by reference
all the terms and conditions of the Asset Purchase Agreement for purposes of
enforcing the rights and obligations of the Buyer against the Stockholders set
forth in this Agreement. Each of the Stockholders has reviewed a final copy of
the Asset Purchase Agreement and acknowledges a full, complete and clear
understanding of the obligations in the Asset Purchase Agreement based on
consultation with counsel of their own choosing.
9. REMEDIES AVAILABLE. All remedies set forth in the Asset Purchase
Agreement intended to be available to the Buyer, in addition to all other
remedies available at law or in
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equity, shall be made available to the Buyer against the Stockholders to the
same extent available against the Sellers.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together will constitute one and the same instrument. Additionally, signatures
transmitted by facsimile shall be effective and delivery deemed made when
received by facsimile transmission; facsimile signatures shall be followed by
next-day delivery of original counterparts.
EXECUTED this 10th day of November, 1997.
DCI/DWC ACQUISITION CORP.
By /s/ Xxxxx X. Xxxxxx
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Address for Notice:
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XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
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Signature
Address for Notice:
000 Xxxxxxx Xxxx Xx.
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Xxxxxxxx Xxxxxxx, XX 00000
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XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
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Signature
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Address for Notice:
000 Xxxxxx Xxxxx
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Xxxxxxxx Xxxxxxx, XX 00000
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XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
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Signature
Address for Notice:
1371 Daffodil
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Lewisville
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Xxxxx 00000
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XXXX XXXXX
/s/ Xxxx Xxxxx
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Signature
Address for Notice:
0000 Xxxxxxxxx Xx.
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Xxxxxx, XX 00000
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