Exhibit 10.18
PROXY AGREEMENT
PROXY AGREEMENT dated as of September 10, 1997, among Giant Cement
Holding, Inc., a Delaware corporation the ("Parent"), and the persons listed on
Schedule A hereto (collectively, the "Shareholders" and each a "Shareholder"),
each a shareholder of Solite Corporation, a Virginia corporation (the
"Company").
Contemporaneously with the execution of this Agreement, the Company,
the Parent and GCHI Acquisition Corp., a Virginia corporation and wholly-owned
subsidiary of Parent ("Acquisition Sub"), are entering into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which it is contemplated
that Acquisition Sub will be merged with and into the Company (the "Merger") and
the holders of the Company's common stock, par value $2.00 per share (the
"Company Common Stock"), will be entitled to receive shares of Parent's Common
Stock, par value $.01 per share ("Parent Common Stock"), for such shares of
Company Common Stock.
Parent, as a condition to its willingness to enter into the Merger
Agreement, has required the Shareholders to grant Parent an irrevocable proxy
with respect to an aggregate of at least two-thirds of the outstanding shares of
Company Common Stock, series A preferred stock, series B preferred stock and
series C preferred stock (such shares, and any additional shares when and if
acquired, being referred to as the "Shares") on the terms and conditions
hereinafter set forth.
The parties hereto agree as follows:
1. Irrevocable Proxy. Each Shareholder hereby irrevocably
constitutes and appoints the Parent or any designee of the Parent the lawful
agent, attorney and proxy of such Shareholder during the term of this Agreement,
to vote all of his, her or its Shares, at any meeting or in connection with any
written consent of the Company's shareholders (a) in favor of the Merger, (b) in
favor of the Merger Agreement, as it may be modified or amended from time to
time, (c) against any Acquisition Transaction (as defined in the Merger
Agreement) (other than the Merger) or other merger, sale, or other business
combination between the Company and any other person or entity or any other
action which would make it impractical for the Parent to effect a merger or
other business combination of the Company with the Parent or Acquisition Sub,
and (d) against any other action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or which would result in any of the
Company's obligations under the Merger Agreement not being fulfilled. This proxy
shall not authorize the
Parent to vote the Shares (or execute a written consent) with respect to (a) the
conversion of Company Preferred Stock (as defined in the Merger Agreement) into
Company Common Stock, (b) the Spin-Off (as defined in the Merger Agreement), or
(ii) any matters other than those specified in the preceding sentence which may
be presented to the Company's shareholders at any meeting or in connection with
any written consent of the Company's shareholders. This power of attorney is
irrevocable, is granted in consideration of the Parent entering into the Merger
Agreement and is coupled with an interest sufficient in law to support an
irrevocable power. This appointment shall revoke all prior attorneys and proxies
appointed by any Shareholder at any time with respect to the Shares and no
subsequent attorneys or proxies will be appointed by such Shareholder, or be
effective, with respect thereto.
2. Representations and Warranties of the Shareholders. Each
Shareholder severally and not jointly represents and warrants to the Parent as
follows:
(a) Ownership of Shares. That Shareholder is the sole beneficial
owner of the number of Shares set forth opposite that Shareholder's name on
Schedule A. The Shares set forth opposite that Shareholder's name on Schedule A
constitute all the Shares owned beneficially or of record by that Shareholder.
The Shares set forth opposite that Shareholder's name on Schedule A are held by
that Shareholder, or by a nominee or custodian for the benefit of that
Shareholder, free and clear of all liens, claims, security interests, agreements
and other encumbrances, except for encumbrances arising under this Agreement.
(b) Power; Binding Agreement. That Shareholder has the legal
capacity to enter into and perform all of that Shareholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
that Shareholder will not violate any other agreement to which that Shareholder
is a party, including, without limitation, any voting agreement, shareholders
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by that Shareholder and constitutes a valid and binding obligation of
that Shareholder, enforceable against that Shareholder in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject to
general principles of equity. If that Shareholder is married and that
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
obligation of, that Shareholder's spouse, enforceable against that spouse in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and subject to general principles of equity.
(c) Consents and Approvals; No Violation. Neither the execution
and delivery of this Agreement by that Shareholder nor the consummation of the
transactions contemplated by this Agreement will: (i) require any consent,
approval, authorization or permit of, or filing with or notification to, any
person or entity or any governmental or regulatory authority, except in
connection with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
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1976, as amended ("HSR Act") or pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); (ii) conflict with, result in a breach of, or
result in a default (or give rise to a right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
license, agreement or other instrument or obligation to which that Shareholder
is a party or by which that Shareholder or any of that Shareholder's assets may
be bound; or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to that Shareholder or by which any of that Shareholder's
assets are bound.
(d) Brokers. No broker, finder or other investment banker is
entitled to any broker's, finder's or other similar fee or commission in
connection with this Agreement or the transactions contemplated by this
Agreement based upon agreements made by or on behalf of that Shareholder.
3. Representations and Warranties of the Parent. The Parent
represents and warrants to each Shareholder that:
(a) Power; Binding Agreement. The Parent has the corporate power
and authority to enter into and perform all its obligations under this
Agreement. The execution, delivery and performance of this Agreement by the
Parent will not violate any other agreement to which the Parent is a party. This
Agreement has been duly and validly authorized, executed and delivered by the
Parent and constitutes a valid and binding obligation of the Parent, enforceable
against the Parent in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject to general principles of equity.
(b) Consents and Approvals; No Violation. Neither the execution
and delivery of this Agreement by the Parent nor the consummation by the Parent
of the transactions contemplated by this Agreement will: (i) require any
consent, approval, authorization or permit of, or filing with or notification
to, any person or entity or any governmental or regulatory authority, except in
connection with the HSR Act or pursuant to the Exchange Act; (ii) conflict with,
result in a breach of, or result in a default (or give rise to a right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, license, agreement or other instrument or obligation to
which the Parent is a party or by which the Parent or any of its assets may be
bound; or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Parent or by which any of its assets are bound.
(c) Brokers. No broker, finder or other investment banker is
entitled to any broker's, finder's or other similar fee or commission in
connection with this Agreement or the transactions contemplated by this
Agreement based upon agreements made by or on behalf of the Parent.
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4. Covenants of the Shareholders. Each Shareholder hereby covenants
and agrees that:
(a) that Shareholder will not enter into any transaction, take
any action, or by inaction permit any event to occur that would (i) result in
any of the representations or warranties of that Shareholder herein contained
not being true and correct at and as of the time immediately after the
occurrence of such transaction, action or event; or (ii) have the effect of
preventing or disabling that Shareholder from performing that Shareholder's
obligations under this Agreement;
(b) that Shareholder will not grant any proxies or powers of
attorney with respect to any Shares, deposit any Shares into a voting trust or
enter into a voting agreement with respect to such Shares;
(c) until the termination of this Agreement, that Shareholder
will at all times use his, her or its best efforts in his, her or its capacity
as a shareholder of the Company to prevent the Company from taking any action in
violation of the Merger Agreement;
(d) from and after the date hereof until the termination of this
Agreement the Shares will not be sold, transferred, pledged, hypothecated,
transferred by gift, or otherwise disposed of in any manner whatsoever without
notifying the Parent in advance and obtaining and delivering to the Parent any
evidence that the Parent may reasonably request to evidence the transferee's
agreement to be bound by this Agreement; provided, however, that in the event of
that Shareholder's death during the term of this Agreement, the Shares may be
transferred in accordance with the Shareholder's last will and testament, or if
none, in accordance with the applicable laws of intestate succession, provided
such Shares remain subject in all respects to the terms of this Agreement; and
(e) that Shareholder will execute and deliver any additional
documents reasonably necessary or desirable, in the opinion of the Parent's or
the Company's counsel, to evidence the irrevocable proxy granted in Section 1
with respect to the Shares or otherwise implement and effect the provisions of
this Agreement.
5. No Solicitation. No Shareholder shall, in that Shareholder's
capacity as such, directly or indirectly, (a) solicit, initiate, facilitate or
encourage (including by way of furnishing or disclosing non-public information)
any inquiries or the making of any proposal with respect to any Acquisition
Transaction, (b) negotiate, explore or otherwise engage in discussion with any
person (other than the Parent and its representatives) with respect to any
Acquisition Transaction, (c) agree to or endorse an Acquisition Transaction with
any person (other than the Parent or the Acquisition Sub) or any agreement,
arrangement or understanding with respect to any such Acquisition Transaction or
which would require the Company to abandon, terminate or fail to consummate the
Merger or any other transaction contemplated
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by this Agreement, or (d) authorize or permit any person or entity acting on
behalf of that Shareholder to do any of the foregoing. If any Shareholder
receives any inquiry or proposal regarding any Acquisition Transaction, that
Shareholder shall promptly inform the Parent of that inquiry or proposal.
6. Termination. This Agreement shall terminate on the earlier of (i)
the Effective Time (as defined in the Merger Agreement) of the Merger or (ii)
upon the termination of the Merger Agreement.
7. Miscellaneous.
(a) No Waiver. The failure of any party to exercise any right,
power or remedy under this Agreement or otherwise available in respect of this
Agreement at law or in equity, or to insist upon compliance by any other party
with that party's obligations under this Agreement, shall not constitute a
waiver of any right to exercise any such right, power or remedy or to demand
such compliance.
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt, to the parties at the addresses
specified below (or at such other address for a party as shall be specified by
like notice; provided that notices of a change of address shall be effective
only upon receipt thereof). Any such notice shall be effective upon receipt, if
personally delivered or telecopied, or one day after delivery to a courier for
next-day delivery.
(i) If to the Parent, to:
Giant Cement Holding, Inc.
000-X Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(ii) if to a Shareholder, to such Shareholder at the address
set forth on Schedule A hereto.
(c) Descriptive Headings; Interpretation. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning
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or interpretation of this Agreement. References in this Agreement to Sections
and Schedules mean a Section or Schedule of this Agreement unless otherwise
indicated. The terms "beneficially own" and "beneficial owner" with respect to
any securities shall have the same meaning as in, and shall be determined in
accordance with, Rule 13d-3 under the Exchange Act.
(d) Entire Agreement; Assignment. This Agreement (including the
schedule and other documents and instruments referred to herein), together with
the Merger Agreement, constitute the entire agreement and supersede all other
prior agreements and understandings, both written and oral, among the parties or
any of them, with respect to the subject matter hereof. Except as otherwise
expressly provided herein, this Agreement is not intended to confer upon any
person not a party hereto any rights or remedies hereunder. Except as otherwise
expressly provided herein, this Agreement shall not be assigned by operation of
law or otherwise; provided that the Parent may assign its rights and obligations
hereunder to a direct or indirect subsidiary of the Parent, but no such
assignment shall relieve the Parent of its obligations hereunder.
(e) Liability After Transfer. Each Shareholder agrees that,
notwithstanding any transfer of that Shareholder's Shares in accordance with
Section 4(d), that Shareholder shall remain liable for his or her performance of
all obligations under this Agreement.
(f) Injunctive Relief; Remedies Cumulative.
(i) The Parent, on the one hand, and the Shareholders, on
the other hand, acknowledge that the other party will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any of the
covenants or agreements of such party that are contained in this Agreement. It
is accordingly agreed that, in addition to any other remedies that may be
available to the non-breaching party upon the breach by any other party of such
covenants and agreements, the non-breaching party shall have the right to obtain
injunctive relief to restrain any breach or threatened breach of such covenants
or agreements or otherwise to obtain specific performance of any of such
covenants or agreements.
(ii) No remedy conferred upon or reserved to any party
herein is intended to be exclusive of any other remedy and every remedy shall be
cumulative and in addition to every other remedy herein or now or hereafter
existing at law, in equity or by statute.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia without
giving effect to the provisions thereof relating to conflicts of laws.
(h) Effect of Partial Invalidity. Whenever possible, each
provision of this Agreement shall be construed in such a manner as to be
effective and valid under
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applicable law. In case any one or more of the provisions contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect against a party hereto, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby and such invalidity, illegality or unenforceability shall only
apply as to such party in the specific jurisdiction where such judgment shall be
made.
(i) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first above written.
SHAREHOLDERS:
/s/ Xxxx Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxx Xxxxxxx
/s/ Xxx X. Xxxxxxx
-------------------------------
Name: Xxx X. Xxxxxxx
/s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
/s/ X. X. Xxxxxx, III
-------------------------------
Name: X. X. Xxxxxx, III
/s/ Xxx. Xxxx X. Xxxxxxx
-------------------------------
Name: Xxx. Xxxx X. Xxxxxxx
/s/ A. Xxxxxx Xxxx, Xx.
-------------------------------
Name: A. Xxxxxx Xxxx, Xx.
/s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx, Trustee
-------------------------------
Name: Xxxx X. Xxxxxxx, Trustee
/s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
/s/ X. X. Xxxxxxx, Xx.
-------------------------------
Name: X. X. Xxxxxxx, Xx.
/s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
/s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
/s/ Xxxxxxx Xxxxx, Xx.
-------------------------------
Name: Xxxxxxx Xxxxx, Xx.
/s/ X.X. Xxxxxxxxx XX
-------------------------------
Name: X.X. Xxxxxxxxx XX
Xxxxxxx Americana Foundation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
GIANT CEMENT HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President & CFO
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Schedule A
to
Proxy Agreement
---------------
Number of Shares of Number of Shares of Number of Shares of
Name and Address of Number of Shares Series A Preferred Series B Preferred Series C Preferred
Shareholder of Common Stock Stock Stock Stock
----------------------- ---------------- --------------------- --------------------- ----------------------
Xxxx, Xxx. Xxxx X.
000 X. Xxxxxxxxxx Xxx.
Xxxxxxx, XX 00000 32500
Xxxxxx, Xxx X.
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000 2955 213
Xxxxx, Xxx. Xxxx X.
000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000 131150
Facetti, Xxx X.
00000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 800 24
Ford Jr., X. Xxxxxx
0000 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000 1775 60
Hofheimer II, H.C.
000 X. Xxxxxxxxxx Xxx.
Xxxxxxx, XX 00000 15500
Xxxxxx III, Xxxxxxxx X.
00000 Xxxxx Xxxxx Xx.
Xxxxxxxxxx, XX 00000 425 60
Xxxxxxx Americana
Foundation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 10000
Xxxxxxx, Xxxxxxx X.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000 10100
Xxxxxxx, Xxxxxx X.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 25000
Xxxxxxx, Xxxxx X.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 27500
Xxxxxxx Jr., Xxxxxxx X.
0000 Xxxxxxxx Xx.
Xxxxxxx, XX 00000 100 60
Xxxxxxx, Xxx. Xxxx
Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 12625 5940
Xxxxxxx, Xxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 13840 407
Xxxxxxx, Xxxx X.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 64850 8700 5435 15429
Xxxxxxx, Xxxx X. -
Trustee
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 150000
Xxxxxxx, X. Xxxxx
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000 1400 65
Xxxxxx, Xxx. Xxxxx X.
000 X. Xxxxxxxxxx Xxx.
Xxxxxxx, XX 00000 26100
Total 409470 8700 12247 15429
