AGREEMENT
THIS AGREEMENT dated as of April 24, 2006 by and
between PW EAGLE, INC., a Minnesota corporation (the
"Company") and Caxton International Limited, a British
Virgin Islands Corporation ("Caxton Intenational")
which together with Caxton Associates, L.L.C., a Delaware
limited liability Company ( "Caxton Associates") is herein
referred to as "Caxton".
WHEREAS, Caxton Associates filed a Schedule 13D dated
March 6, 2006 with regard to securities of the Company (the
"Caxton Schedule 13D");
WHEREAS, in view of the Caxton Schedule 13D, the Company
believes it is in the best interest of the shareholders of
the Company to enter into the following agreement with Caxton
International with respect to actions to be taken at the
Company's 2006 Annual Meeting of Shareholders (the "Annual
Meeting").
NOW, THEREFORE, the parties hereto agree as follows:
1. Nominations for Board of Directors. The Company
will include among the nominees for election to the Board by
the shareholders of the Company at the Annual Meeting, Xxx X.
Xxxxx and Xxxxxxx X. Xxxxxxxx, who have been identified to the
Company by Caxton Associates as nominees independent of Caxton.
The Company agrees to call and hold the Annual Meeting as soon
as reasonably practicable following the execution of this
Agreement.
2. Vote on Options. The Board of Directors of the Company
shall propose for approval at the Annual Meeting, and recommend
that the Company's shareholders approve, an amendment to the
Company's 1997 Stock Option Plan increasing the number of shares
reserved for issuance under the plan from 2,200,000 to 2,700,000,
which will provide a sufficient number of shares available under
the 1997 Plan to satisfy the December 13, 2005 grant of options
to certain senior executives.
3. Vote on Restricted Stock Grants. The Board of Directors
of the Company shall propose for approval at the Annual Meeting,
and recommend that the Company's shareholders approve, the
restricted stock grants made by the Company on March 6, 2003,
September 30, 2003 and April 3, 2006 consisting of an aggregate
of 90,500 shares of the Company's Common Stock.
4. Voting Agreement. Caxton agrees to vote all of the
Company's common stock beneficially owned by them on the record
date for the Annual Meeting in favor of each of the items of
business described in paragraphs 1, 2 and 3 above to be presented
to the Shareholders at the Annual Meeting. Neither Caxton nor
any of its affiliates or associates (as those terms are defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended), will, and they will not assist or encourage others
(including by providing financing) to, directly or indirectly,
propose a competing slate of directors for the Annual Meeting, or
solicit votes of the shareholders of the Company in opposition to
the slate of directors to be nominated as set forth herein or in
opposition to any of the items of business described in paragraphs
1, 2 and 3 above.
5. Amendment. No amendment or waiver of any provision of this
Agreement shall be effective unless in writing and signed by all
of the parties hereto.
6. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
7. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of
each party.
8. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts
taken together shall constitute one and the same instrument.
9. Notice. All notices, requests and demands to or upon a
party hereto, to be effective, shall be in writing, and shall be
sent by certified or registered mail, return receipt requested, by
personal delivery against receipt, by overnight courier or by
facsimile and, unless otherwise expressly provided herein, shall
be deemed to have been validly served, given, delivered or received
immediately when delivered against receipt, three (3) business days'
after deposit in the mail, postage prepaid, one (1) business day
after deposit with an overnight courier or, in the case of
facsimile notice, when sent with respect to machine confirmed,
addressed as follows:
If to Company:
PW Eagle, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000-0000
Attention: K. Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
If to Caxton
Caxton International Limited
c/o Caxton Associates, L.L.C.
000 Xxxxxxxxx Xxxx, Xxxx. 0
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
With a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
or to such other address as each party may designate for itself
by notice given in accordance with this Section 13.
10. Time of Essence. Time is of the essence of this
Agreement.
11. Entire Agreement. This Agreement embodies the entire
understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements, understandings and inducements, whether express or
implied, oral or written.
12. Interpretation. No provision of this Agreement shall be
construed against or interpreted to the disadvantage of any party
hereto by any court or other governmental or judicial authority
by reason of such party having or being deemed to have structured
or dictated such provision.
13. Governing Law; Consent to Forum. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF MINNESOTA (WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF
LAW PROVISION OR RULE). EACH PARTY HEREBY CONSENTS AND AGREES THAT
ANY FEDERAL OR STATE COURT LOCATED IN HENNEPIN COUNTY, MINNESOTA
SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN THE COMPANY ON THE ONE HAND AND CAXTON ON THE
OTHER HAND PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING
OUT OF OR RELATED TO THIS AGREEMENT. CAXTON EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND CAXTON HEREBY WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
EACH PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT
AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS
SET FORTH IN THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
3 DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE
RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY ANY PARTY OF ANY
JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION
UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM
OR JURISDICTION.
14. Injunctive Relief. Each of the parties acknowledges that the
other party will suffer irreparable harm if the first party breaches
this Agreement. Accordingly, each party shall be entitled, in
addition to any other rights and remedies that it may have, at law
or at equity, to an injunction, without the posting of a bond or
other security, enjoining or restraining the other party from any
violation of this Agreement. Each party hereby consents to the other
party's right to the issuance of such injunction.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this AGREEMENT to be duly executed and delivered as of
the date first above written.
PW EAGLE, INC.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Chairman
CAXTON INTERNATIONAL LIMITED
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President/Treasurer
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President/Secretary
