Exhibit A
PROXY AGREEMENT
This is a PROXY AGREEMENT (the "Agreement"), dated as
of November 11, 1996 by and among Xxxxxxxx Acquisition LLC,
a Delaware limited liability company ("Parent"), Xxxxxxxx NY
Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Acquisition Sub"), and certain
stockholders of The Strober Organization, Inc., a Delaware
corporation (the "Company") who are signatories hereto
(collectively, the "Stockholders" and each, a
"Stockholder").
Background
A. As of the date hereof, each Stockholder owns
(either beneficially or of record) that number of shares of
common stock, par value $.01 per share (the "Common Stock"),
of the Company set forth on Exhibit A hereto (together with
any shares of Common Stock acquired by such Stockholder
during the Proxy Term (as defined in Section 2 hereof),
whether upon the exercise of options, conversion of
convertible securities or otherwise, the "Stockholder
Shares").
B. Parent, Acquisition Sub and the Company propose to
enter into an Agreement and Plan of Merger of even date
herewith (as the same may be amended from time to time, the
"Merger Agreement") (all capitalized terms used but not
defined herein shall have the meanings set forth in the
Merger Agreement) which provides, upon the terms and subject
to the conditions thereof, for the merger of Acquisition Sub
with the Company (the "Merger").
C. As a condition to their willingness to enter into
the Merger Agreement, Parent and Acquisition Sub have
requested that each Stockholder agree, and in order to
induce the Parent and Acquisition Sub to enter into the
Merger Agreement, each of the Stockholders has agreed to,
among other things, grant Parent irrevocable proxies to vote
the Stockholder Shares owned of record or beneficially by
each such Stockholder on the terms and conditions provided
herein.
Terms
In consideration of the promises and the mutual
covenants herein contained and intending to be legally
bound, the parties hereto agree as follows:
A. Transfer and Voting of Shares.
1. Restriction on Transfer, Proxies and Non-Interference.
Each Stockholder hereby agrees, while this Agreement is in
effect, and except as contemplated hereby, not to (i) offer
to sell, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale,
transfer, tender, pledge, encumbrance, assignment or other
disposition of, any of the Stockholder Shares or any other
shares of Common Stock; (ii) deposit any Stockholder Shares
into a voting trust or enter into a voting agreement with
respect to any Stockholder Shares or grant any proxy or
power of attorney with respect to any such Stockholder
Shares; or (iii) take any action that would make any
representation or warranty of such Stockholder contained
herein untrue or incorrect or have the effect of preventing
or disabling such Stockholder from performing his or her
obligations under this Agreement or otherwise take any
action that is contrary to the transactions contemplated
hereby and by the Merger Agreement. Notwithstanding
anything herein to the contrary, the parties hereto shall be
entitled (x) to pledge or hypothecate shares of Common Stock
to institutional lenders as security for personal or
commercial loans, or (ii) to transfer shares of Common Stock
to charitable trusts, descendants or trusts for the benefit
of any spouse or descendant subject to the condition
precedent to any such transfer that the transferee (or in
the case of a pledge or hypothecation, the pledgee) shall
execute and deliver to the Company and to Parent the Proxy
Agreement agreeing to be personally bound thereby and
appointing the transferor as the transferee's proxy in
voting all the transferred shares as long as the Proxy
Agreement remains in effect.
1. Voting of Shares; Further Assurances. Except as
otherwise provided in this Section 1(b), each Stockholder,
by this Agreement, with respect to those Stockholder Shares
that such Stockholder owns of record, does hereby constitute
and appoint Parent, or any affiliate of Parent that is a
party to the Merger Agreement, with full power of
substitution, during and for the Proxy Term, as such
Stockholder's true and lawful attorney and irrevocable
proxy, for and in such Stockholder's name, place and stead,
to vote each of such Stockholder Shares as such
Stockholder's proxy, at every meeting of the stockholders of
the Company or any adjournment thereof or in connection with
any written consent of the Company's stockholders (A) in
favor of the approval and adoption of the Merger Agreement
and approval of the Merger and the other transactions
contemplated by the Merger Agreement, (B) against any
proposal for any action or agreement that would result in a
material breach of any covenant, representation or warranty
or any other obligation or agreement of the Company under
the Merger Agreement or which could result in any of the
conditions of the Company's obligations under the Merger
Agreement not being fulfilled, and (C) in favor of any other
matter directly relating to consummation of the transactions
contemplated by the Merger Agreement which is considered at
any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the
foregoing. Each Stockholder intends this proxy to be
irrevocable and coupled with an interest during the Proxy
Term and will take such further action and execute such
other instruments as may be necessary to effectuate the
intent of this proxy and hereby revokes any proxy previously
granted by such Stockholder with respect to his or her
Stockholder Shares. Each Stockholder further agrees to
cause the Stockholder Shares owned by such Stockholder
beneficially to be voted in accordance with the foregoing.
Notwithstanding anything to the contrary in this Agreement
(including Section 6(b) hereof), Parent is not authorized
under this Agreement to, and shall not, directly or
indirectly, vote the Stockholder Shares, execute a written
consent of the Company's stockholders or otherwise act
pursuant to this Agreement in any manner (a) to elect or
remove any director of the Company, (b) which would prevent
the Company from taking the actions permitted by Section
7.5(b) of the Merger Agreement (other than approval and
adoption of the Merger Agreement and related agreements and
approval of the transactions contemplated thereby, including
the Merger), (c) to amend, supplement or otherwise modify
the By-laws or Certificate of Incorporation of the Company
(except with respect to and in connection with the Merger)
or (d) to require the Board of Directors of the Company to
take or refrain from taking any action.
(c) Certain Events. Each Stockholder agrees that
this Agreement and the obligations hereunder shall attach to
his or her Stockholder Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of
his or her Stockholder Shares shall pass, whether by
operation of law or otherwise, including without limitation
such Stockholder's heirs, guardians, administrators or
successors.
A. Proxy Term. For the purposes of this Agreement,
"Proxy Term" shall mean the period from the execution of
this Agreement until the earlier of (a) the termination of
the Merger Agreement or (b) the Effective Time (as such term
is defined in the Merger Agreement).
A. Payments To Parent.
1. In the event that on or after the date hereof, (i) the
Merger Agreement has been terminated pursuant to the
provisions of Section 9.1(f) thereof and at the time of such
termination neither Parent nor Acquisition Sub is in breach
of its obligations under the Merger Agreement and (ii) any
Stockholder thereafter sells Stockholder Shares in
connection with the consummation of a Superior Proposal (as
defined in Section 7.5(b) of the Merger Agreement) within
six months of the termination of the Merger Agreement, such
selling Stockholder shall pay to Parent an amount in cash
equal to fifty percent (50%) of the product of (x) the
number of such Stockholder Shares sold and (y) the excess,
if any, of (A) the per share cash (and/or if consideration
is received in such sale in the form of securities, the
"fair market value" (as defined in Section 3(b) below) of
such securities) received by such Stockholder as a result of
such sale (the "Selling Stockholder Price") over (B) the
Merger Consideration (as defined in the Merger Agreement).
1. For purposes of this Agreement, the fair market value
of any securities listed on a national securities exchange
or traded on The Nasdaq Stock Market shall be equal to the
average closing price per share of such security as reported
on such exchange or The Nasdaq Stock Market for the twenty
(20) trading days immediately preceding the effective date
of the transaction pursuant to which the Stockholder is
entitled to receive such securities.
1. Any payment required to be made pursuant to Section
3(a) of this Agreement shall be made within two business
days after the settlement of such sale.
B. Representations and Warranties of Parent. Parent and
Acquisition Sub jointly and severally hereby represent and
warrant to the Stockholders as follows:
1. Organization and Qualification. Parent is a limited
liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware.
Acquisition Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Each of Parent and Acquisition Sub has the
requisite power and authority to carry on its business as it
is now being conducted. Each of Parent and Acquisition Sub
is duly qualified to do business and is in good standing in
each jurisdiction in which the character of its properties,
owned or leased, or the nature of its activities make such
qualification necessary, except where the failure to be so
qualified or in good standing would not have a material
adverse effect on the business, assets, results of
operations, condition (financial or otherwise) or prospects
(a "Material Adverse Effect") of Parent and its subsidiaries
taken as a whole. Acquisition Sub has not conducted any
business prior to the date hereof and has no assets and
liabilities other than those incident to its formation and
to the consummation of the transactions contemplated hereby
and by the Merger Agreement. Copies of the Certificate of
Formation of Parent and the Certificate of Incorporation,
and By-laws of Acquisition Sub heretofore delivered to the
Company are true, complete and correct as of the date
hereof.
1. Authority Relative to this Agreement. Each of Parent
and Acquisition Sub has the requisite power and authority to
enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby
have been duly authorized by the managers and members, if
required, of Parent and by the Board of Directors and the
sole stockholder of Acquisition Sub, if required, and no
other proceedings on the part of Parent or Acquisition Sub
are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by each of Parent
and Acquisition Sub and, assuming this Agreement constitutes
a valid and binding obligation of the Stockholders,
constitutes the legal, valid and binding obligation of each
of Parent and Acquisition Sub enforceable against each of
Parent and Acquisition Sub in accordance with its terms.
1. Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by Parent or
Acquisition Sub nor the consummation of the transactions
contemplated hereby will (i) conflict with or result in any
breach of any provision of their respective certificates of
incorporation or by-laws; (ii) require any consent,
approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority,
except (A) in connection with the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "H-S-R
Act"), (B) pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (C) such filings and
approvals as may be required under the "blue sky," takeover
or securities laws of various states, or (D) where the
failure to obtain such consent, approval, authorization or
permit, or to make such filing or notification, would not
prevent or delay consummation of the transactions
contemplated by this Agreement or would not otherwise
prevent Parent or Acquisition Sub from performing their
respective obligations under this Agreement; (iii) result in
a default (or give rise to any 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 Parent or any of its
subsidiaries is a party or by which any of their respective
assets may be bound, except for such defaults (or rights of
termination, cancellation or acceleration) as to which
requisite waivers or consents have been obtained or which,
individually or in the aggregate, would not have a Material
Adverse Effect on Parent and its subsidiaries taken as a
whole; or (iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Parent or
Acquisition Sub, any of their respective subsidiaries or any
of their respective assets, except for violations which
would not have a Material Adverse Effect on Parent and its
subsidiaries taken as a whole.
A. Representations and Warranties of Each Stockholder.
Each Stockholder hereby severally (for himself, herself or
itself only) represents and warrants to Parent and
Acquisition Sub as follows:
1. Ownership of Shares. Such Stockholder owns of record
or beneficially the number of shares of Common Stock set
forth on Exhibit A hereto and such shares constitute all of
the shares of Common Stock owned of record or beneficially
by such Stockholder. Such Stockholder has sole voting power
and sole power of disposition with respect to his or her
Stockholder Shares, with no restrictions, except those that
may be imposed by applicable federal securities laws, on
such Stockholder's rights of disposition pertaining thereto.
Except as specifically set forth on Exhibit A hereto, such
Stockholder has not granted any proxy with respect to his or
her Stockholder Shares and neither such Stockholder nor his
or her Stockholder Shares is bound by or party to any
agreement or other instrument restricting such Stockholders'
voting rights with respect to such Stockholder Shares. Such
Stockholder owns of record or beneficially the number and
type of securities issued or granted by the Company,
including without limitation options, warrants and other
convertible securities, set forth on Exhibit A hereto and
such securities constitute, along with such shares of Common
Stock set forth on Exhibit A hereto, all of the securities
of the Company or instruments convertible into securities of
the Company owned of record or beneficially by such
Stockholder. The Stockholder Shares are, and immediately
prior to the Effective Time will be, duly authorized,
validly issued, fully paid, non-assessable and, except for
those pledges set forth on Schedule 5(a) hereto, free and
clear of any and all liens, security interests, proxies,
voting trusts or agreements, encumbrances, charges or claims
of any kind whatsoever except for any encumbrance or proxy
arising under this Agreement.
1. Organization; Authority Relative to this Agreement.
Such Stockholder has the legal capacity, power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by such Stockholder
and, assuming this Agreement constitutes a valid and binding
obligation of Parent and Acquisition Sub, this Agreement
constitutes a legal, valid and binding agreement of such
Stockholder enforceable against such Stockholder in
accordance with its terms. Except as set forth on Schedule
5(b) hereto, there is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which
such Stockholder is a trustee whose consent is required for
the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby;
provided, however, that any such consent has been obtained
in writing prior to the execution of this Agreement.
1. Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by such
Stockholder, the performance by such Stockholder of the
obligations and transactions contemplated hereby, including
without limitation the granting of the irrevocable proxy and
the appointment of an attorney-in-fact pursuant to Section
1(b) hereof, nor the compliance by such Stockholder with any
provision hereof, will (i) require any consent, approval,
authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, except (A) in
connection with the H-S-R Act, (B) pursuant to the Exchange
Act, (C) such filings and approvals as may be required under
the "blue sky," takeover or securities laws of various
states, or (D) where the failure to obtain such consent,
approval, authorization or permit, or to make such filing or
notification, would not prevent or delay the performance by
such Stockholder of his or her obligations under this
Agreement; (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or
both would become a default or give rise to any right of
termination, amendment, cancellation or acceleration) under,
or result in the creation of a lien or encumbrance on any of
his or her Stockholder Shares pursuant to, any of the terms,
conditions or provisions of any note, license, agreement or
other instrument or obligation to which such Stockholder is
party or by which such Stockholder or any of his or her
assets, including the Stockholder Shares, may be bound,
except for such defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers
or consents have been obtained or which, individually or in
the aggregate, would not prevent or delay the performance by
such Stockholder of his or her obligations under this
Agreement; or (iii) conflict with or violate any order,
writ, injunction, judgment, decree, statute, law, rule or
regulation applicable to such Stockholder or any of his or
her assets, including the Stockholder Shares.
(d) Acknowledgment of Reliance. Such Stockholder
understands and acknowledges that the Parent and Acquisition
Sub are entering into the Merger Agreement in reliance upon
such Stockholder's execution and delivery of this Agreement.
(e) Brokers. No broker, investment banker, financial
adviser or other person is entitled to any broker's,
finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such
Stockholder.
A. Certain Covenants of Stockholder. Except in accordance
with Subsection 6(e), each Stockholder hereby covenants and
agrees (with respect to himself or herself but not as to the
other Stockholders) as follows:
1. Negotiations. Unless and until this Agreement shall
have been terminated in accordance with its terms, each of
the Stockholders agrees and covenants that (i) he or she
will not, directly or indirectly, initiate, solicit or
encourage any inquiries or the making or implementation of
any proposal or offer (including, without limitation, any
proposal or offer to its stockholders) with respect to a
merger, acquisition, tender offer, exchange offer,
consolidation or similar transaction involving, or any
purchase of 10% or more of the assets or securities of the
Company or any of its subsidiaries, other than the
transactions contemplated by the Merger Agreement (any such
proposal or offer being hereinafter referred to as an
"Acquisition Proposal") or engage in any negotiations
concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an
Acquisition Proposal, or otherwise facilitate any effort or
attempt to make or implement an Acquisition Proposal; (ii)
each of the Stockholders will immediately cease and cause to
be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore with
respect to any of the foregoing; and (iii) each of the
Stockholders will notify Parent immediately if any such
inquiries or proposals are received by, any such information
is requested from, or any such negotiations or discussions
are sought to be initiated or continued with any of the
Stockholders or, to the knowledge of such Stockholder, the
Company, which notification shall include the terms of any
such inquiries or proposals, provided, however, that if the
Company actually provides the information and notice to
Parent required by Section 7.5 of the Merger Agreement with
respect to any contact with the Company, such Stockholder
shall not have any obligation to provide any such duplicate
information.
1. Voting. Each Stockholder hereby agrees that, during
the Proxy Term, at any meeting of the stockholders of the
Company, however called, or in connection with any written
consent of the Company's Stockholders, such Stockholder
shall vote (or cause to be voted) his or her Stockholder
Shares, except as specifically requested by the Parent in
writing in advance: (a) in favor of the Merger; (b) against
any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty
or any other obligation or agreement of the Company under
the Merger Agreement; and (c) against any action or
agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede,
interfere with, delay, postpone or attempt to discourage the
Merger, including, but not limited to: (i) any
extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the
Company or any of 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 its subsidiaries; (iii) any change in the management or
board of directors of the Company, except as agreed to in
writing by Parent; (iv) any material change in the present
capitalization or dividend policy of the Company; (v) any
amendment of the Company's Certificate of Incorporation; or
(vi) any other material change in the Company's corporate
structure, management or business. Such Stockholder shall
not enter into any agreement or understanding with any
person or entity during the Proxy Term to vote or give
instructions to vote in any manner inconsistent with the
terms of this Section 6(b). Notwithstanding the foregoing,
in the event that the Company has properly terminated the
Merger Agreement pursuant to Section 9.1(f) thereof, a
Stockholder may vote (or cause to be voted) his or her
Stockholder Shares in favor of a Superior Proposal.
1. Additional Shares. Each Stockholder hereby agrees,
while this Agreement is in effect, to promptly notify Parent
of the number of any new shares of Common Stock acquired,
beneficially or of record, by such Stockholder, if any,
after the date hereof whether through acquisition in the
open market, upon exercise of any option, warrant or other
convertible security, or otherwise.
1. Waiver of Appraisal and Dissenter's Rights. Each
Stockholder hereby waives any rights of appraisal or rights
to dissent from the Merger that such Stockholder may have.
1. Acting as Director and Executive Officer.
Notwithstanding anything in this Section 6 to the contrary,
the covenants and agreements set forth in Section 6(a) shall
not be deemed to prevent any Stockholder, while acting in
his or her capacity as a director of the Company, from
taking any action that is specifically permitted under the
applicable provisions of the Merger Agreement. Further, any
Stockholder may act in his capacity as an executive officer
of the Company upon direction by the Board of Directors of
the Company pursuant to Section 7.5(b) of the Merger
Agreement.
1. Stop Transfer. Each Stockholder agrees with, and
covenants to, Parent and Acquisition Sub that such
Stockholder may not request that the Company register the
transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of his or her
Stockholder Shares, unless such transfer is made in
compliance with this Agreement. Each Stockholder agrees,
with respect to any Stockholder Shares in certificated form,
that such Stockholder will deliver to the Company within
fifteen business days after the date hereof, the
certificates representing such Stockholder Shares and the
Company will inscribe upon such certificates the following
legend (the "Legend"): "The shares of Common Stock, par
value $.01 per share, of The Strober Organization, Inc. (the
"Company"), represented by this certificate are subject to a
Proxy Agreement dated as of November 11, 1996, and may not
be sold or otherwise transferred, except in accordance
therewith. Copies of such Agreement may be obtained at the
principal executive offices of the Company." Each
Stockholder agrees that within ten business days after the
date hereof, such Stockholder will no longer hold any
Stockholder Shares, whether certificated or uncertificated,
in "street name" or in the name of any nominee. In the
event that the Company enters into a Superior Proposal and
has terminated the Merger Agreement in accordance with
Section 9.1(f) thereof, the Company will remove the Legend
from all certificates representing Stockholder Shares and
will return such certificates to the Stockholders. Pursuant
to the Merger Agreement, the Company has agreed to notify
the transfer agent of the provisions set forth in this
Section and each Stockholder agrees to provide such
documentation and to take such other actions as may be
reasonably required to give effect to such provisions with
respect to such Stockholder Shares.
1. Reorganization Agreement. Each Stockholder hereby
agrees that, at the Effective Time, the Reorganization
Agreement shall terminate as to such Stockholder and such
Stockholder shall have no further rights thereunder.
A. Further Assurances. From time to time, at the other
party's request and without further consideration, each
party hereto (as to the Stockholders, in their capacity as
stockholders) shall execute and deliver such additional
documents and take all such further action as may be
necessary or reasonably desirable to consummate and make
effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement and the Merger
Agreement. Without limiting the generality of the
foregoing, during the Proxy Term, each Stockholder shall
perform such further acts and execute such further documents
and instruments as may reasonably be required to vest in the
Parent and Acquisition Sub the power to carry out the
provisions of this Agreement including without limitation
the exercise of the power afforded by Section 1 hereof.
A. Miscellaneous.
1. Entire Agreement; Assignment. This Agreement
(i) constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and
oral, among the parties or any of them with respect to the
subject matter hereof and (ii) shall not be assigned by
operation of law or otherwise, provided that Parent may
assign any of its rights and obligations to any wholly-owned
direct or indirect subsidiary of Parent or to any entity
which controls or is under common control with Parent, but
no such assignment shall relieve Parent of its obligations
hereunder and Parent shall remain as fully and primarily
liable as if there was no such assignment.
1. Amendment. This Agreement may not be modified,
amended, altered or supplemented except by an instrument in
writing signed on behalf of all the parties hereto; provided
that Exhibit A hereto may be supplemented by the Parent and
Acquisition Sub by adding the name and other relevant
information concerning any stockholder of the Company who
agrees to be bound by the terms of this Agreement without
the agreement of any other party hereto, and thereafter such
added stockholder shall be treated as a "Stockholder" for
all purposes of this Agreement.
1. Enforcement of the Agreement. The parties hereto agree
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. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the
terms and provisions hereof in addition to any other remedy
to which they are entitled at law or in equity, and the
parties hereto further agree to waive any requirement for
the posting of any bond in connection with the obtaining of
any such injunctive or other equitable relief.
1. Validity. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced
by any rule of law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties
as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent
possible.
1. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall
be deemed to have been duly given when delivered in person,
by cable, telegram, facsimile transmission with confirmation
of receipt, or telex, or by registered or certified mail
(postage prepaid, return receipt requested) to the
respective parties as follows:
if to Parent or Acquisition Sub:
Xxxxxxxx Acquisition LLC
c/o Fidelity Capital Associates, Inc.
00 Xxxxxxxxxx Xxxxxx, X00X
Xxxxxx, XX 00000-0000
Attn: Xx. Xxxx X. Xxxxxxx
with a copy to:
Fidelity Capital Associates, Inc.
00 Xxxxxxxxxx Xxxxxx, X00X
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
and a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx Xxxxxx, P.C.
Xxxxxx X. Xxxxxxx III, Esq.
if to Stockholders:
c/o Sills Xxxxxx Xxxxxxxxx Xxxxx
Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. North III, Esq.
with a copy to:
Xxxxx Xxxxxx Xxxxxxxxx Xxxxx
Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. North III, Esq.
or to such other address as the person to whom notice is
given may have previously furnished to the others in writing
in the manner set forth above (provided that notice of any
change of address shall be effective only upon receipt
thereof).
1. Choice of Law/Consent to Jurisdiction. The validity,
interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of
Delaware without regard to its rules of conflict of laws.
The parties hereby irrevocably and unconditionally consent
to the jurisdiction of the Chancery Court of the State of
Delaware for any action, suit or proceeding arising out of
or relating to this Agreement or the transactions
contemplated hereby, and the parties agree not to commence
any action, suit or proceeding related thereto except in
such court. The parties further irrevocably and
unconditionally waive any objection to the laying of venue
of any action, suit or proceeding arising out of or relating
to this Agreement in the Chancery Court of the State of
Delaware, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in such court that any
such action, suit or proceeding brought in such court has
been brought in an inconvenient forum. Each party further
agrees that service of any process, summons, notice or
document by U.S. registered mail (i) in the case of Parent
or Acquisition Sub, to the address of such party set forth
in Section 8(e) above; or (ii) in the case of any
Stockholder, to the address of such Stockholder set forth on
Exhibit A hereto, shall be effective service of process for
any action, suit or proceeding brought against such party in
such court.
1. Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or
interpretation of this Agreement.
1. Counterparts. This Agreement may be executed in two or
more counterparts (and via Facsimile), each of which shall
be deemed to be an original, but all of which shall
constitute one and the same agreement.
1. Performance by Acquisition Sub. Parent hereby agrees
to cause Acquisition Sub to comply with its obligations
hereunder as contemplated in the Merger Agreement.
1. Expenses. Each of the parties hereto will pay all fees
and expenses it incurs in connection with this Agreement,
whether or not consummated, including without limitation the
fees and expenses of its financial and legal advisors.
1. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto,
and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
1. Survival of Representations, Warranties and Agreements.
The representations, warranties and agreements of
Acquisition Sub, Parent and the Stockholders pursuant to
this Agreement shall survive the consummation of the Merger
or the termination of the Merger Agreement.
1. No Agreement Until Executed. Irrespective of
negotiations among the parties or the exchanging of drafts
of this Agreement, this Agreement shall not constitute or be
deemed to evidence a contract, agreement, arrangement or
understanding among the parties hereto unless and until (i)
the Board of Directors of the Company has approved, for
purposes of Section 203 of the Delaware General Corporation
Law and any applicable provision of the Company's
certificate of incorporation, the possible acquisition of
the Stockholder Shares by Parent and Acquisition Sub
pursuant to this Agreement and (ii) this Agreement is
executed by all parties hereto.
IN WITNESS WHEREOF, Parent, Acquisition Sub and the
Stockholders have caused this Agreement to be executed as of
the date first written above by their respective officers
thereunto duly authorized.
XXXXXXXX ACQUISITION LLC
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Manager
XXXXXXXX NY ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
IN WITNESS WHEREOF, Parent, Acquisiton Sub and the
Stockholders have caused this Agreement to be executed as of
the date first written above by their respective officers
thereunto duly authorized.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx
X. Xxxxxx
Xxxxxx X. Xxxxxx Xxxx X. Xxxxxx
/s/ Xxx Xxxxxxx /s/ Xxxxxxx X.
Xxxx
Xxx Xxxxxxx Xxxxxxx X. Xxxx
/s/ Xxx Xxxxxxx /s/ Xxxxx
Xxxxxxx
Xxx Xxxxxxx, as Trustee for Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
/s/ Xxx Xxxxxxx /s/ Xxxxxxx
Xxxxxxx
Xxx Xxxxxxx, as Trustee for Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx X.
Xxxxxxxxx
Xxxxxx Xxxxxxx Xxxxx X. Xxxxxxxxx,
Trustee, Trust
F/J/B/O Xxxxxx and
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxxxxxx /s/ Xxxx
Xxxxxxxx
Xxxxxx Xxxxxxxxxxxx Xxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
PROXY AGREEMENT
[SIGNATURE CONTINUATION PAGE]
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx;
proxy for
Xxxxxx X. Xxxxxx
Charitable Trust
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx; proxy
for
Xxxx Xxxxxxxx
Charitable Trust
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx;
proxy for
Xxxxxx X. Xxxxxx
Charitable Trust
Charitable
Remainder Trust
