Exhibit 10.2
TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT, dated as of October 10, 2003 (the
"Agreement"), among Euramax International, Inc., a Delaware corporation
("Parent"), Amerimax Pennsylvania, Inc., a Pennsylvania corporation and an
indirect wholly owned subsidiary of Parent ("Purchaser"), Xxxxxx Holdings, Ltd.,
a Pennsylvania corporation (the "Company"), and the persons listed on Schedule A
hereto (each a "Shareholder" and, collectively, the "Shareholders").
WHEREAS, Parent, Purchaser and the Company propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement") providing for, among other
things, the making of a cash tender offer (as such offer may be amended from
time to time as permitted under the Merger Agreement, the "Offer") by Purchaser
for all of the issued and outstanding shares of common stock, par value $.01 per
share, of the Company (the "Company Common Stock" or the "Shares") and the
merger of the Company and Purchaser on the terms and conditions set forth in the
Merger Agreement (the "Merger");
WHEREAS, each Shareholder is the beneficial owner (as hereinafter
defined) of the Shares set forth opposite such Shareholder's name on Schedule A
hereto; such Shares, as such may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Company, together
with Shares that may be acquired after the date hereof by such Shareholder,
including shares of Company Common Stock issuable upon the exercise of options
(including the Options set forth in Schedule A), being collectively referred to
herein as the "Securities" of such Shareholder; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have required that the Shareholders enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein and intending to be legally bound hereby, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not otherwise
defined herein have the meanings ascribed to such terms in the Merger Agreement.
Section 2. Representations and Warranties of the Shareholders. Each
Shareholder, severally and not jointly, represents and warrants to Parent and
Purchaser, as of the date hereof and as of any Closing (as defined herein), as
follows:
(a) Such Shareholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which meaning will apply for all purposes of this Agreement) of, and has
good title to, all of such Shareholder's
Securities, free and clear of any mortgage, pledge, hypothecation, rights of
others, claim, security interest, charge, encumbrance, title defect, title
retention agreement, voting trust agreement, interest, option, lien, charge or
similar restriction or limitation, including any restriction on the right to
vote, sell or otherwise dispose of the Securities (each, a "Lien"), except as
set forth in this Agreement.
(b) The Securities set forth opposite his, her or its name on
Schedule A constitute all of the securities (as defined in Section 3(a)(10) of
the Exchange Act, which definition will apply for all purposes of this
Agreement) of the Company beneficially owned, directly or indirectly, by such
Shareholder.
(c) Except for such Securities, such Shareholder does not,
directly or indirectly, other than as disclosed on Schedule A, beneficially own
or have any option, warrant or other right to acquire any securities of the
Company that are or may by their terms become entitled to vote or any securities
that are convertible or exchangeable into or exercisable for any securities of
the Company that are or may by their terms become entitled to vote, nor is such
Shareholder subject to any Contract, commitment, arrangement, understanding,
restriction or relationship, other than this Agreement, that provides for such
Shareholder to vote or acquire any securities of the Company. Such Shareholder
holds exclusive power to vote the Securities and has not granted a proxy to any
other person (as defined in the Merger Agreement, which meaning will apply for
all purposes of this Agreement) to vote the Securities, subject to the
limitations set forth in this Agreement.
(d) Such Shareholder has full legal capacity, power and authority
to execute and deliver this Agreement and to perform his, her or its obligations
hereunder and such execution, delivery and performance have been authorized by
such Shareholder, and no other proceedings or actions by such Shareholder are
necessary therefor.
(e) This Agreement has been duly executed and delivered by such
Shareholder and, assuming this Agreement constitutes a valid and binding
agreement of Parent, Purchaser and the Company, is a valid and binding
obligation of such Shareholder enforceable against such Shareholder in
accordance with its terms.
(f) Neither the execution and delivery of this Agreement nor the
performance by such Shareholder of his, her or its obligations hereunder will
conflict with, result in a violation or breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would result in a default)
or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the creation of any Lien on any Securities under, (i)
any Contract, commitment, agreement, understanding, arrangement or restriction
of any kind to which such Shareholder is a party or by which such Shareholder is
bound or (ii) any injunction, judgment, writ, decree, order or ruling applicable
to the Shareholder; except for conflicts, violations, breaches, defaults,
terminations, amendments, cancellations, accelerations or Liens, disclosed on
Section 3.1(c) of the Company Disclosure Schedule, that could not individually
or in the aggregate be reasonably expected to prevent or materially impair or
delay the performance by such Shareholder of his, her or its obligations
hereunder.
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(g) Neither the execution and delivery of this Agreement nor the
performance by such Shareholder of his, her or its obligations hereunder will
violate any law, decree, statute, rule or regulation applicable to the
Shareholder or require any order, consent, authorization or approval of, filing
or registration with, or declaration or notice to, any court, administrative
agency or other governmental body or authority, the violation of which or
failure to take any such action could, individually or in the aggregate, be
reasonably expected to prevent or materially impair or delay the performance by
such Shareholder of its obligations hereunder, other than any required notices
or filings pursuant to federal or state securities laws.
(h) Except as set forth in Section 3.8 of the Merger Agreement,
no broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement or the Merger Agreement based upon arrangements made by or on behalf
of such Shareholder that is or will be payable by the Company or any of its
subsidiaries.
(i) Such Shareholder understands and acknowledges that Parent is
entering into, and causing Purchaser to enter into, the Merger Agreement in
reliance upon such Shareholder's execution, delivery and performance of this
Agreement.
(j) To the extent such Shareholder is a trust, such Shareholder
has supplied or made available to Parent or Purchaser true and correct copies of
all documents establishing, organizing, governing or controlling such trust
including any order, decree or other judicial pronouncement affecting such trust
documents, and all such documents remain in full force and effect.
(k) Neither the Company nor any of its subsidiaries has any
outstanding liabilities or obligations to such Shareholder that were not fully
reflected or reserved against in the most recent financial statements included
in the Filed Company SEC Documents, except for immaterial travel and other
expenses related to service as an employee, officer or director and obligations
relating to service as an employee, officer or director.
Section 3. Representations and Warranties of the Company. The Company
represents and warrants to Parent and Purchaser, as of the date hereof and as of
any Closing, as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania, has the
requisite corporate power and corporate authority to execute and deliver this
Agreement and to perform its obligations hereunder, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement.
(b) This Agreement has been duly executed and delivered by the
Company and, assuming this Agreement constitutes the valid and binding agreement
of each of the Shareholders, Parent and Purchaser, is a valid and binding
obligation of the Company, enforceable against it in accordance with its terms.
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(c) Neither the execution and delivery of this Agreement nor the
performance by the Company of its obligations hereunder will conflict with,
result in a violation or breach of, or constitute a default (or an event that,
with notice or lapse of time or both, would result in a default) or give rise to
any right of termination, amendment, cancellation, or acceleration or result in
the creation of any Lien on the assets or properties of the Company under, (i)
its articles of incorporation or bylaws, (ii) any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which the
Company is a party or by which the Company is bound or (iii) any judgment, writ,
decree, order or ruling applicable to the Company; except in the case of clause
(ii) for conflicts, violations, breaches or defaults that would not individually
or in the aggregate be reasonably expected to prevent or materially impair or
delay the performance by the Company of its obligations hereunder.
(d) Neither the execution and delivery of this Agreement nor the
performance by the Company of its obligations hereunder will violate any law,
decree, statute, rule or regulation applicable to the Company or require any
order, consent, authorization or approval of, filing or registration with, or
declaration or notice to, any court, administrative agency or other governmental
body or authority, the violation of which or failure to take any such action
could, individually or in the aggregate, be reasonably expected to prevent or
materially impair or delay the performance by the Company of its obligations
hereunder, other than any required notices or filings pursuant to federal or
state securities laws.
(e) The Company has taken all necessary corporate or other action
(including approval by the Board of Directors of the Company) to render the
provisions of Sections 2538 through 2588, inclusive, of the PBCL and any other
applicable anti-takeover statutes, rules or regulations inapplicable to this
Agreement and the Merger Agreement and the transactions contemplated hereby and
thereby.
Section 4. Representations and Warranties of Parent and Purchaser. Parent
and Purchaser represent and warrant to the Shareholders, as of the date hereof
and as of any Closing, as follows:
(a) Each of Parent and Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of their respective
jurisdiction of incorporation, has the requisite corporate power and corporate
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by Parent
and Purchaser and, assuming this Agreement constitutes a valid and binding
agreement of the Company and each of the Shareholders, is a valid and binding
obligation of each of Parent and Purchaser, enforceable against each of them in
accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor the
performance by Parent and Purchaser of their respective obligations hereunder
will conflict with, result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of
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time or both, would result in a default) or give rise to any right of
termination, amendment, cancellation, or acceleration under, (i) their
respective certificates of incorporation or bylaws, (ii) any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Parent or Purchaser is a party or by which Parent or Purchaser is bound or
(iii) any judgment, writ, decree, order or ruling applicable to Parent or
Purchaser; except in the case of clause (ii) for conflicts, violations, breaches
or defaults that would not individually or in the aggregate be reasonably
expected to prevent or materially impair or delay the performance by Parent or
Purchaser of their obligations hereunder.
(d) Neither the execution and delivery of this Agreement nor the
performance by Parent and Purchaser of their respective obligations hereunder
will violate any law, decree, statute, rule or regulation applicable to Parent
or Purchaser or require any order, consent, authorization or approval of, filing
or registration with, or declaration or notice to, any court, administrative
agency or other governmental body or authority, the violation of which or
failure to take any such action would not individually or in the aggregate be
reasonably expected to prevent or materially impair or delay the performance by
Parent or Purchaser of their obligations hereunder, other than any required
notices or filings pursuant to federal or state securities laws.
(e) Any Securities acquired upon exercise of the Purchase Option
(as defined herein) will be acquired for Parent's or Purchaser's own account,
and will not be, and the Purchase Option is not being, acquired by Parent and
Purchaser with a view to public distribution thereof in violation of any
applicable provisions of the Securities Act of 1933, as amended (the "Securities
Act").
Section 5. Transfer of the Shares. During the term of this Agreement,
except with the written consent of Parent or Purchaser or as otherwise expressly
provided herein, each Shareholder agrees that such Shareholder will not (a)
tender into any tender or exchange offer or otherwise sell, transfer, pledge,
assign, hypothecate or otherwise dispose of, or encumber with any Lien, any of
the Securities, except for (i) transfers to any spouse or descendant of such
Shareholder, or any trust or retirement plan or account for the benefit of such
Shareholder, spouse or descendant; provided that any such transfer shall not
release the transferring Shareholder of any of its obligations under this
Agreement and any such transferee agrees in writing to be bound by the terms of
this Agreement and (ii) transfers by operation of law provided that any such
transferee shall be bound by the terms of this Agreement, (b) purchase or
otherwise voluntarily acquire any Securities (otherwise than in connection with
a transaction of the type described in Section 6 or by exercising any of the
Options), (c) deposit the Securities into a voting trust, enter into a voting
agreement or arrangement with respect to the Securities or grant any proxy or
power of attorney with respect to the Shares, (d) enter into any Contract,
option or other arrangement (including any profit sharing arrangement) or
undertaking with respect to the direct or indirect sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Securities or any other securities of the Company or (e) take any other
action that would in any way destroy, materially diminish or impair the voting
power or economic rights or other rights attributable to such Shareholder's
Shares or materially restrict, limit or interfere with the performance of such
Shareholder's
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obligations hereunder or the transactions contemplated hereby or which would
otherwise materially diminish the benefits of this Agreement to Parent or
Purchaser.
Section 6. Adjustments.
(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Shares or the
like or any other action that would have the effect of changing a Shareholder's
ownership of the Company's capital stock or other securities or (ii) a
Shareholder becomes the beneficial owner of any additional Shares of or other
securities of the Company, then the terms of this Agreement will apply to the
shares of capital stock held by such Shareholder immediately following the
effectiveness of the events described in clause (i) or such Shareholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Securities hereunder.
(b) Each Shareholder hereby agrees, during the term of this
Agreement, to promptly notify Parent and Purchaser of the number of any new
Securities acquired by such Shareholder, if any, after the date hereof, provided
that the acquisition of Company Common Stock upon the exercise of Options set
forth on Schedule A shall not require such notification. The Company agrees that
it shall promptly notify Parent and Purchaser upon the exercise of Options set
forth on Schedule A.
Section 7. Tender of Securities. Unless this Agreement has been terminated,
each Shareholder hereby agrees that such Shareholder will validly tender (or
cause the record owner of such shares to validly tender) and sell (and not
withdraw, except in the event the Purchase Option is exercised, in which case
such withdrawal shall be for the limited purpose of consummating the Purchase
Option) pursuant to and in accordance with the terms of the Offer as promptly as
reasonably practicable and in any event not later than the tenth business day
after commencement of the Offer (or the earlier of the expiration date of the
Offer and the fifth business day after such Shares, as the case may be, are
acquired by such Shareholder if the Shareholder acquires Shares after the date
hereof), all of the then outstanding Shares beneficially owned by such
Shareholder (including the shares of Company Common Stock outstanding as of the
date hereof and set forth on Schedule A opposite such Shareholder's name). In
the event, notwithstanding the provisions of the first sentence of this Section
7, during the term of this Agreement, any Shares beneficially owned by a
Shareholder are for any reason withdrawn from the Offer or are not purchased
pursuant to the Offer, such Shares will remain subject to the terms of this
Agreement. Each Shareholder acknowledges that Purchaser's obligation to accept
for payment and pay for Shares tendered in the Offer is subject to all the terms
and conditions of the Offer.
Section 8. Voting Agreement. Each Shareholder, by this Agreement and during
its term, does hereby (a) agree that at any annual, special, postponed or
adjourned meeting of the Shareholders of the Company it will cause the Shares
such Shareholder beneficially owns to be counted as present (or absent if
requested by Parent or Purchaser) thereat for purposes of establishing a quorum
in order to vote or consent and (b) constitute and appoint Parent and Purchaser,
or any nominee thereof, with full power of substitution, during and for the term
of this
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Agreement, as his, her or its true and lawful attorney and proxy for and in his,
her or its name, place and stead, to vote all the Shares such Shareholder
beneficially owns at the time of such vote, at any annual, special, postponed or
adjourned meeting of the Shareholders of the Company (and this appointment will
include the right to sign his, her or its name (as Shareholder) to any consent,
certificate or other document relating to the Company that the laws of the
Commonwealth of Pennsylvania may require or permit), in the case of both (a) and
(b) above, (x) in favor of approval and adoption of the Merger Agreement and
approval and adoption of the Merger and the other transactions contemplated
thereby and (y) against (1) any Acquisition Proposal, (2) any action or
agreement that could reasonably be expected to result in a breach in any respect
of any covenant, agreement, representation or warranty of the Company under the
Merger Agreement or this Agreement and (3) the following actions (other than the
Merger and the other transactions contemplated by the Merger Agreement): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries; (ii) a
sale, lease or transfer of a material amount of assets of the Company or any of
its subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries; (iii) (A) any change in a
majority of the persons who constitute the board of directors of the Company or
any of its subsidiaries as of the date hereof; (B) any change in the present
capitalization of the Company or any amendment of the Company's or any of its
subsidiaries' articles or certificate of incorporation or bylaws, as amended to
date; (C) any other material change in the Company's or any of its subsidiaries'
corporate structure or business; or (D) any other action that is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone, or
adversely affect the Offer, the Merger and the other transactions contemplated
by this Agreement and the Merger Agreement. This proxy and power of attorney is
a proxy and power coupled with an interest, and each Shareholder declares that
it is irrevocable until this Agreement shall terminate in accordance with its
terms. Each Shareholder hereby revokes all and any other proxies with respect to
the Shares that such Shareholder may have heretofore made or granted. For Shares
as to which a Shareholder is the beneficial but not the record owner, such
Shareholder shall use his, her or its reasonable best efforts to cause any
record owner of such Shares to grant to Parent a proxy to the same effect as
that contained herein. Each Shareholder hereby agrees to permit Parent and
Purchaser to publish and disclose in the Offer Documents and the Proxy Statement
and related filings under the securities laws such Shareholder's identity and
ownership of Securities and the nature of his, her or its commitments,
arrangements and understandings under this Agreement.
Section 9. No Solicitation. Each Shareholder agrees that neither such
Shareholder (in his, her or its capacity as such) nor any of such Shareholder's
officers, directors, employees, trustees (in their capacities as such),
representatives, agents or affiliates (including, without limitation, any
investment banker, attorney or accountant retained by any of them) will directly
or indirectly initiate, solicit or encourage (including by way of furnishing
non-public information or assistance), or take any other action to facilitate,
any inquiries or the making or submission of any Acquisition Proposal, or enter
into or maintain or continue discussions or negotiate with any person or entity
in furtherance of such inquiries or to obtain or induce any person to make or
submit an Acquisition Proposal or agree to or endorse any Acquisition Proposal
or assist or participate in, facilitate or encourage, any effort or attempt by
any other person or entity to do or seek any of the foregoing or authorize or
permit any of its officers, directors, employees, trustees (in their capacities
as such) or any of its affiliates or any investment banker, financial advisor,
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attorney, accountant or other representative or agent retained by any of them to
take any such action. Each Shareholder shall promptly (and in any event within
one business day) advise Parent in writing of the receipt of request for
information or any inquiries or proposals relating to an Acquisition Proposal.
The terms of this Section 9 shall not restrict or limit the effect of Section 24
hereof.
Section 10. Grant of Purchase Option.
(a) Each Shareholder hereby grants to Parent and Purchaser an
irrevocable option (the "Purchase Option") to purchase for cash, in a manner set
forth below, any or all of the Shares (and including Shares acquired after the
date hereof by such Shareholder) beneficially owned by the Shareholder at a
price (the "Exercise Price") per Share equal to $3.90 per share of Company
Common Stock. In the event of any stock dividends, stock splits,
recapitalizations, combinations, exchanges of shares or the like, the Exercise
Price will be appropriately adjusted for the purpose of this Section 10.
(b) In the event that (i) the Purchase Option has been exercised,
in whole or in part with respect to any Shareholder, (ii) the Merger is
consummated and (iii) Parent and Purchaser have increased the price per share of
either the Company Common Stock payable in the Merger above the Exercise Price
set forth in Section 10(a) (it being understood that the payment of any amounts
pursuant to the exercise of dissenters' rights will not be considered for this
purpose), Parent shall pay to each Shareholder from whom Parent or Purchaser
purchased Purchase Option Shares, within two business days following the
Effective Time of the Merger, by certified check or official bank check in
immediately available funds or by wire transfer of immediately available funds,
as such Shareholder may direct, an amount equal to the excess of (A) the price
per share paid for the Company Common Stock in the Merger over (B) the Exercise
Price of the Company Common Stock, purchased by Parent or Purchaser from such
Shareholder upon exercise of the Purchase Option.
Section 11. Exercise of Purchase Option.
(a) Subject to the conditions set forth in Section 13 hereof, the
Purchase Option may be exercised by Parent or Purchaser, in whole or in part, at
any time or from time to time after the occurrence of any Trigger Event (as
defined below). The Company shall notify Parent promptly in writing of the
occurrence of any Trigger Event, it being understood that the giving of such
notice by the Company or the Shareholder is not a condition to the right of
Parent or Purchaser to exercise the Purchase Option. In the event Parent or
Purchaser wishes to exercise the Purchase Option, Parent shall deliver to each
Shareholder a written notice (an "Exercise Notice") specifying the total number
of Shares it wishes to purchase from such Shareholder. Each closing of a
purchase of Shares (a "Closing") will occur at a place, on a date and at a time
designated by Parent or Purchaser in an Exercise Notice delivered at least five
business days prior to the date of the Closing.
(b) A "Trigger Event" means any one of the following: (i) the
Offer has expired but, due to the failure of the Shareholder in breach of this
Agreement to validly tender and not withdraw all of the then outstanding Shares
beneficially owned by such
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Shareholder, the Purchaser has not accepted for payment or paid for any Shares
pursuant to the Offer or (ii) the Offer has expired and the Parent or Purchaser
has waived the Minimum Condition and accepted any Shares for purchase pursuant
to the Offer.
(c) If requested by Parent and Purchaser in the Exercise Notice
and only if necessary and sufficient to achieve the Minimum Condition (together
with other similarly placed Shareholders), such Shareholder shall exercise all
Options (to the extent exercisable) and other rights (including conversion or
exchange rights) beneficially owned by such Shareholder and shall sell the
Shares acquired pursuant to such exercise to Parent or Purchaser as provided in
this Agreement.
(d) The Company agrees that immediately upon the purchase of any
Shares by Purchaser or any of its affiliates pursuant to the Purchase Option,
Purchaser shall be entitled to designate such number of directors, rounded up to
the next whole number, on the Board of Directors of the Company as will give
Purchaser representation on the Board of Directors of the Company equal to the
product of (i) the total number of directors on the Board of Directors of the
Company (giving effect to the increase in the size of such Board pursuant to
this Section 11) and (ii) the percentage that the number of votes represented by
Shares beneficially owned by Purchaser and its affiliates (including Shares so
purchased pursuant to the Purchase Option) bears to the number of votes
represented by Shares then outstanding. In furtherance thereof, the Company
covenants to Parent and Purchaser that it and its Board of Directors shall, upon
the request of Parent, use their best efforts promptly either to increase the
size of its Board of Directors or to secure the resignations of such number of
its incumbent directors, or both, as is necessary to enable such designees of
Parent to be so elected or appointed to the Company's Board of Directors, and,
subject to applicable law, the Company shall take all actions available to the
Company to cause such designees of Parent to be so elected or appointed
(including by calling a special meeting of its shareholders if so requested by
Parent or Purchaser). At such time, the Company shall, if requested by Parent,
subject to applicable law, also take all action necessary to cause persons
designated by Parent to constitute at least the same percentage (rounded up to
the next whole number) as is on the Company's Board of Directors of (i) each
committee of the Company's Board of Directors, (ii) each board of directors (or
similar body) of each subsidiary of the Company and (iii) each committee (or
similar body) of each such board. Such designees of Purchaser shall be assigned
to the classes of directors having the latest possible expiration dates for
their terms of office at the time of such election.
Section 12. Termination of Purchase Option. The Purchase Option will
terminate upon the earliest of: (i) the Effective Time; (ii) termination of the
Merger Agreement; or (iii) the exercise in full of the Purchase Option and
consummation of the Closing with respect thereto. Upon the giving by Parent or
Purchaser to a Shareholder of the Exercise Notice and the tender of the
aggregate Exercise Price, Parent or Purchaser, as the case may be, subject to
applicable law and the conditions of Section 13, will be deemed to be the holder
of record of the Shares transferable upon such exercise, notwithstanding that
the stock transfer books of the Company are then closed or that certificates
representing such Shares have not been actually delivered to Parent.
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Section 13. Conditions To Closing. The obligation of each Shareholder to
sell such Shareholder's Shares to Parent or Purchaser hereunder is subject to
the condition that no preliminary or permanent injunction or other order by any
court of competent jurisdiction prohibiting or otherwise restraining such sale
or acquisition is in effect.
Section 14. Closing. At any Closing with respect to Shares beneficially
owned by a Shareholder, (i) such Shareholder will deliver to Parent or
Purchaser, as the case may be, a certificate or certificates in definitive form
representing the number of the Shares specified by Parent or Purchaser, as the
case may be, in its Exercise Notice, such certificate to be registered in the
name of Parent or Purchaser, as the case may be, and (ii) Parent or Purchaser,
as the case may be, will deliver to the Shareholder the aggregate Exercise Price
(and if a Specified Shareholder, less any Incentive Payments owed by such
Specified Shareholder in accordance with Section 19(b) hereof) for the Shares so
specified and being purchased by wire transfer of immediately available funds.
Such Shareholder will pay all Shareholder's expenses, and any and all United
States federal, state and local transfer taxes and other similar charges that
may be payable in connection with the preparation, issue and delivery of stock
certificates under this Section 14 in the name of Parent or Purchaser, as the
case may be. At the Closing, each Shareholder shall deliver to Parent or
Purchaser, as the case may be, good title to all of the Securities beneficially
owned by it, free and clear of any Liens.
Section 15. No Impairment. The Company will not take any action that will
in any way destroy or materially diminish or impair the rights and preferences
attributable to the Shares (including the voting rights and power, economic
rights and the percentage ownership interest represented by the Shares)
purchased pursuant to or subject to the Purchase Option, including, without
limitation, issuance of additional capital stock of the Company or securities
convertible, exercisable or representing a right to such capital stock, amending
the Articles of Incorporation or Bylaws of the Company, declaring a stock
dividend, declaring a stock split, recapitalizing the Company, reclassifying the
capital stock of the Company, reorganizing the Company, or combining or
exchanging shares of capital stock or other securities of the Company.
Section 16. No Inconsistent Agreements. No Shareholder shall enter into any
agreement or understanding with any person or entity the effect of which would
be inconsistent or violative of the provisions of this Agreement.
Section 17. Termination. Subject to Section 26(a), this Agreement will
terminate (a) upon the earlier to occur of (i) the termination of the Purchase
Option pursuant to clause (i) of Section 12, (ii) 90 days after the final
Closing, except for Sections 12, 18 and 19 hereof, which will only terminate, if
at all, as and when provided therein, or (iii) the termination of the Merger
Agreement or (b) by the mutual consent of each Shareholder as to its rights and
obligations hereunder, the Board of Directors of the Company and the Board of
Directors of Parent.
Section 18. Specified Shareholder Obligations.
(a) Messrs. Xxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxxxx hereby waive
and release all rights, payments or other benefits which may be payable to them
in connection with or as a result of the consummation of the Offer or Merger, in
any way related to their
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respective roles as employees and directors of the Company or its subsidiaries,
including without limitation, under the Change of Control Agreements, dated
January 1, 2001, by and between the Company and each of Xxxxxx Xxxxxxxxx and
Xxxxxxxx Xxxxxxxx, or any other change in control agreements, severance
agreements, employment agreements and other agreements. Messrs. Xxxxxx Xxxxxxxxx
and Xxxxxxxx Xxxxxxxx expressly acknowledge that the only payments, benefits or
other compensation that may be payable to them by any of Parent, Purchaser, the
Company or any of their subsidiaries or affiliates in connection with or as a
result of the transactions contemplated by the this Agreement or the Merger
Agreement, is the Common Stock Price in the Offer, the Merger Consideration in
the Merger or the Exercise Price upon exercise of the Purchase Option, as
applicable, except for miscellaneous benefits granted to or conferred upon
either of them by the Company after the date of this Agreement and prior to the
Effective Time that will not exceed $25,000 in the aggregate for each
individual.
(b) In order to induce Parent and Purchaser to enter into this
Agreement and the Merger Agreement and to consummate the transactions relating
to the Options contemplated by the Merger Agreement, immediately prior to (and
subject to) the acceptance of any shares of Company Common Stock for payment by
Purchaser or Parent under the Offer, or with respect to a given Specified
Shareholder (as defined below), concurrently with Purchaser's exercise of the
Purchase Option with respect to Shares held by such Specified Shareholder, the
Shareholders listed on Schedule B hereto (the "Specified Shareholders") shall be
obligated to make the payments (the "Incentive Payments") to Parent as set forth
on Schedule B hereto. Purchaser is hereby authorized to reduce the Cash Payment
to be made to the Specified Shareholders by the amount of their respective
Incentive Payments. If Parent or Purchaser shall fail to purchase any Shares
validly tendered and not withdrawn in the Offer by a Specified Shareholder, in
accordance with the terms of the Offer Documents and applicable law, or if not
so tendered, if Purchaser shall fail to consummate the Merger and the Merger
Agreement shall terminate, Purchaser shall be obligated to refund to any
Specified Shareholder any such Incentive Payments that were actually made by
such Specified Shareholder (except to the extent such Incentive Payment is paid
in connection with the exercise of the Purchase Option).
(i) The parties hereto intend for the Incentive Payments to
be treated as a reduction in the Cash Payments payable for such Shareholder's
Options in accordance with Section 2.10 of the Merger Agreement for accounting
and tax purposes.
Section 19. Covenant Not To Compete. In order to induce Parent and
Purchaser to enter into this Agreement and the Merger Agreement and to
consummate the transactions contemplated hereby and thereby, Messrs. Xxxxxx
Xxxxxxxxx and Xxxxxxxx Xxxxxxxx (the "Specified Executives") hereby agree as
follows:
(a) Each Specified Executive agrees that, from the date of
acceptance of any Shares pursuant to the Offer or the purchase of any Shares
pursuant to the Purchase Option and for five years thereafter, such Specified
Executive shall not directly or indirectly, anywhere in the United States,
engage in any business which is the same as, similar to, or in competition with
the business of the Company and the Surviving Corporation or any of its
subsidiaries. Each Specified Executive acknowledges that the restrictions
contained herein, in
-11-
view of the nature of the business in which such Specified Executive is or has
been engaged, are reasonable and necessary to protect the legitimate interest of
the Company and the Surviving Corporation or any of its subsidiaries, that
Parent and Purchaser would not have entered into this Agreement or the Merger
Agreement or been willing to consummate the transactions contemplated thereby
without the benefit of such restrictions, and that any violation of any of these
restrictions would result in irreparable injury to Parent, Company and the
Surviving Corporation or any of its subsidiaries. Each Specified Executive
acknowledges that in the event of a violation of any such restrictions, the
Company and the Surviving Corporation will be entitled to preliminary and
permanent injunctive relief as well as an equitable accounting of all earnings,
profits and other benefits arising from such violation which rights shall be
cumulative and in addition to any other rights or remedies to which Company and
the Surviving Corporation may be entitled. In the event that any such Specified
Executive shall engage, directly or indirectly, in any business in competition
with the business of the Company and the Surviving Corporation, the
non-competition time period referred to above shall be extended by a period of
time equal to that period beginning when such violation commenced, and ending
when the activities constituting such violation shall have finally been
terminated in good faith.
(b) In addition, at all times after the date of this Agreement,
each Specified Executive shall not disclose confidential information of the
Company or the Surviving Corporation in violation of the Merger Agreement to any
other person, entity, corporation, trust, association or partnership. For the
purposes hereof, the term "confidential information" shall include, but not be
limited to, all lists or the identity of any customers, suppliers, creditors or
contacts of the Company, the Surviving Corporation or any of their subsidiaries.
It shall also include any and all information pertaining to any formulas,
business opportunities, processes, techniques, plans, contracts, sales or other
financial data of Company or Surviving Corporation.
(c) Notwithstanding anything to the contrary contained herein, in
the event that any court of equity determines that time period, geographic scope
and/or business scope of this restrictive covenant is held to be unenforceably
long or broad, as the case may be, then, and either such event, neither the
enforceability nor the validity of this section as a whole shall be affected.
Rather, the time period and/or scope of the restriction so affected shall be
reduced to the maximum permitted by law.
Section 20. Expenses. Except as otherwise expressly provided herein or in
the Merger Agreement, all costs and expenses incurred by any of the parties
hereto will be borne by the party incurring such costs and expenses. Parent and
Purchaser, on the one hand, and the Company and the Shareholders, on the other
hand, will indemnify and hold harmless the other from and against any and all
claims or liabilities for finder's fees or brokerage commissions or other like
payments incurred by reason of action taken by him, her or it or any of them, as
the case may be, provided that a Shareholder shall only be obligated to so
indemnify and hold harmless Parent or Purchaser from and against any such claims
by reason of any action taken by such Shareholder.
Section 21. Further Assurances. Each party hereto will execute and deliver
all such further documents and instruments and take all such further action as
may be reasonably necessary in order to consummate the transactions contemplated
hereby. The Company
-12-
covenants to Parent and Purchaser that it and its Board of Directors shall (i)
use its reasonable best efforts to ensure that no state takeover statute or
similar statute or regulation is or becomes applicable to the Purchase Option
and the Transactions and (ii) if any state takeover statute or similar statute
or regulation becomes applicable to any of the Transactions, use its reasonable
best efforts to ensure that the Purchase Option and the other Transactions may
be consummated as promptly as practicable on the terms contemplated by this
Agreement and the Merger Agreement and otherwise to minimize the effect of such
statute or regulation on the Purchase Option and the other Transactions.
Section 22. Publicity. A Shareholder shall not issue any press release or
otherwise make any public statements with respect to this Agreement or the
Merger Agreement or the other transactions contemplated hereby or thereby
without the consent of Parent and Purchaser, except as may be required by law or
applicable stock exchange or NASDAQ rules.
Section 23. Stop Transfer Order. The Company agrees with, and covenants to,
parent and Purchaser that the Company shall not register the transfer of any
certificate representing any Shareholder's Securities unless such transfer is
made in accordance with the terms of this Agreement. The Company and such
Shareholder agree to take all reasonable steps to place with the Company's
transfer agent a stop transfer order on such Securities.
Section 24. Shareholder Capacity. No person executing this Agreement makes
any agreement or understanding herein in such Shareholder's capacity as a
director or officer of the Company or any subsidiary of the Company. Each
Shareholder signs solely in such Shareholder's capacity as the beneficial owner
of such Shareholder's Shares and nothing herein shall limit or affect any
actions taken by a Shareholder in such Shareholder's capacity as an officer or
director of the Company or any subsidiary of the Company to the extent
specifically permitted by the Merger Agreement (including Section 6.1 of the
Merger Agreement). Each Shareholder agrees not to take any action that will
violate Section 6.1 of the Merger Agreement.
Section 25. Enforcement. Each Shareholder and the Company acknowledge that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached by any Shareholder or the Company. It is accordingly agreed
that Parent and Purchaser will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity. Each Shareholder and the Company further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. The provisions
of this paragraph are without prejudice to any other rights that another party
hereto may have against another party hereto for any failure to perform its
obligations under this Agreement. In addition, each Shareholder hereto (i)
consents to submit to the personal jurisdiction of the United States District
Court for the Eastern District of Pennsylvania and, in the absence of Federal
jurisdiction, the state courts located in Philadelphia County in the event any
dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) agrees not to attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (iii) agrees not to
bring any action relating to this Agreement or any of the
-13-
transactions contemplated hereby in any court other than the courts specified in
clause (i) above and (iv) waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any of the
Transactions. In furtherance of the foregoing, each Shareholder and the Company
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts specified in clause (i) above,
and hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. The Company
and each Shareholder hereby designates, appoints and empowers the Company as
their true and lawful agent and attorney in-fact in their name, place and xxxxx
to receive and accept on their behalf service of process in any action, suit or
proceeding with respect to any matters as to which it has submitted to
jurisdiction as set forth above.
Section 26. Miscellaneous.
(a) All representations and warranties contained herein will
terminate as provided in Section 17(a), except that the representations and
warranties contained in Section 2 (a) shall survive for three years after the
date of this Agreement and the representations and warranties contained in
Sections 2(b)-(g), inclusive, and Section 3 and Section 4 will survive for one
year after the termination of the Purchase Option as set forth in Section 12.
The covenants and agreements made herein will survive in accordance with their
respective terms. The representations and warranties given by each Shareholder
herein are not in derogation or limitation of the representations and warranties
given by such Shareholder in any letters of transmittal or similar documents
executed and delivered by such Shareholder pursuant to the Offer or the Merger.
(b) Each Shareholder approves and consents to the cancellation of
their Options in exchange for the Cash Payments subject to the terms and
conditions set forth in the Merger Agreement.
(c) Any provision of this Agreement may be waived at any time by
the party that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(d) This Agreement, together with the Merger Agreement and the
other agreements referred to herein and therein, constitute the entire agreement
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements among the parties with respect to such matters.
-14-
(e) This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the conflicts of laws principles thereof.
(f) The words "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
article, section, paragraph, exhibit and schedule references are to the
articles, sections, paragraphs, exhibits and schedules of this Agreement unless
otherwise specified. Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation." All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Any agreement, instrument, statute or rule defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument, statute or rule as from time to time amended,
modified or supplemented, including (in the case of agreements and instruments)
by waiver or consent and (in the case of statutes and rules) by succession of
comparable successor statutes and rules and all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
(g) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Company to:
Xxxxxx Holdings, Ltd.
000 Xxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: President
Facsimile: 000-000-0000
With a copy to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxx LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: 000-000-0000
-15-
If to Parent or Purchaser to:
Euramax International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with copies to:
Dechert LLP
0000 Xxxx Xxxxxxxx Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Telecopy: 000-000-0000
If to a Shareholder, at the address set forth on the signature pages
hereto or, if no such address is specified, c/o the Company to the Company's
address as set forth above; or in each case to such other address as any party
may have furnished to the other parties in writing in accordance herewith.
(h) This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original, but all of which together will
constitute one agreement.
(i) This Agreement is binding upon and is solely for the benefit
of the parties hereto and their respective successors, legal representatives and
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement will be assigned by any of the parties hereto without the
prior written consent of the other parties, except that Parent and Purchaser
will have the right to assign to any direct or indirect wholly owned subsidiary
of Parent or Purchaser permitted to be substituted for Purchaser or Parent under
the Merger Agreement any or all rights and obligations of Parent or Purchaser
under this Agreement, provided that any such assignment will not relieve either
Parent or Purchaser from any of its obligations hereunder.
(j) in the event any term or provision of this Agreement is
determined to be 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. 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 fullest extent possible.
(k) All rights, powers and remedies provided under this Agreement
or otherwise available in respect hereof at law or in equity will be cumulative
and not alternative,
-16-
and the exercise of any thereof by either party will not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
(l) 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 or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
-17-
IN WITNESS WHEREOF, each of the Company, Parent and Purchaser has
caused this Agreement to be signed by its officer or director thereunto duly
authorized and each Shareholder has signed this Agreement, all as of the date
first written above.
EURAMAX INTERNATIONAL, INC.
By: /s/ J. Xxxxx Xxxxx
--------------------------------------------
Name: J. Xxxxx Xxxxx
Title: President
AMERIMAX PENNSYLVANIA, INC.
By: /s/ J. Xxxxx Xxxxx
--------------------------------------------
Name: J. Xxxxx Xxxxx
Title: President
XXXXXX HOLDINGS, LTD.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
-18-
SHAREHOLDERS:
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxx, III
--------------------------------------------
Xxxx X. Xxxxxx, III
/s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxx X. Xxxx, M.D.
--------------------------------------------
Xxxxx X. Xxxx, M.D.
/s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx
/s/ Xxx Xxxx
--------------------------------------------
Xxx Xxxx
/s/ Xxxx X. Xxxxxx, III
--------------------------------------------
Xxxx X. Xxxxxx, III
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/s/ Xxx X. Xxxxx, D.M.D.
--------------------------------------------
Xxx X. Xxxxx, D.M.D.
XXXXXX XXXXX Q-TIP TRUST
By: /s/ Xxx X. Xxxxx, D.M.D.
----------------------------------------
Xxx X. Xxxxx, D.M.D., co-trustee
XXXXXX XXXXX FAMILY TRUST
By: /s/ Xxx X. Xxxxx, D.M.D.
----------------------------------------
Xxx X. Xxxxx, D.M.D., co-trustee
-20-
SCHEDULE A
--------------------------------------------------------------------------------
Exercisable Unexercisable
Shareholder Common Stock Options Options
--------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxxx 234,045 375,000 --
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx 159,124 347,500 --
--------------------------------------------------------------------------------
Xxxx X. Xxxxxx, III 147,883 405,000 --
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx. 31,000 319,000 --
--------------------------------------------------------------------------------
Xxxxxx Xxxxx Q-TIP Trust 59,931 105,000 --
--------------------------------------------------------------------------------
Xxxxxx Xxxxx Family Trust 200,000 -- --
--------------------------------------------------------------------------------
Xxx X. Xxxxx, D.M.D. 99,500 25,000 --
--------------------------------------------------------------------------------
Xxxxx X. Xxxx, M.D. 125,366 130,000 --
--------------------------------------------------------------------------------
Xxxxx Xxxxxx 37,791 115,000 --
--------------------------------------------------------------------------------
Xxx Xxxx 21,500 65,000 --
--------------------------------------------------------------------------------
Xxxx Xxxx Xxxxxx, III 8,300 65,000 --
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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SCHEDULE B
--------------------------------------------------------------------------------
Shareholder Incentive Payment
--------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxxx $ 48,750
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx $ 45,175
--------------------------------------------------------------------------------
Xxxx X. Xxxxxx, III $ 52,650
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx. $ 41,470
--------------------------------------------------------------------------------
Xxxxxx Xxxxx Q-TIP Trust $ 13,650
--------------------------------------------------------------------------------
Xxx X. Xxxxx, D.M.D. $ 3,250
--------------------------------------------------------------------------------
Xxxxx X. Xxxx, M.D. $ 16,900
--------------------------------------------------------------------------------
Xxxxx Xxxxxx $ 14,950
--------------------------------------------------------------------------------
Xxx Xxxx $ 8,450
--------------------------------------------------------------------------------
Xxxx Xxxx Xxxxxx, III $ 8,450
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TOTAL: $253,695
--------------------------------------------------------------------------------
-22-
