Exhibit (c)(2)
TENDER AND VOTING AGREEMENT
THIS TENDER AND VOTING AGREEMENT dated as of December 16, 1998
(this "Agreement") is by and among SOCIETE NATIONALE D'EXPLOITATION INDUSTRIELLE
DES TABACS ET ALLUMETTES, a corporation organized under the laws of France ("
Parent"), DORSAY ACQUISITION CORP. , a Delaware corporation and a wholly owned
subsidiary of Parent(the " Purchaser"), and MAFCO CONSOLIDATED GROUP INC., a
Delaware corporation ("Mafco").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Purchaser and Consolidated Cigar Holdings Inc., a Delaware corporation
(the "Company"), have entered into an Agreement and Plan of Merger (as amended
from time to time, the "Merger Agreement"), pursuant to which Purchaser has
agreed, among other things, to commence a cash tender offer (as such tender
offer may hereafter be amended from time to time, the "Offer") to purchase any
and all shares of Class A common stock, $0.01 par value, of the Company and any
and all shares of Class B common stock, $0.01 par value, of the Company
(together, the "Company Common Stock");
WHEREAS, as an inducement and a condition to its entering into
the Merger Agreement and incurring the obligations set forth therein, including
the Offer and the Merger, Parent has required that Mafco enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined
-------------------
herein have the respective meanings ascribed to them in the Merger Agreement. In
addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified. For purposes of this Agreement, with respect to Mafco, "Affiliate"
shall not include the Company and the Persons that directly, or indirectly
through one or more intermediaries, are controlled by the Company.
"Beneficially Own" or "Beneficial Ownership" with respect to
any securities means having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act ), including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all Affiliates of such Person and all other Persons with
whom such Person would constitute a "group" within the meaning of Section 13(d)
of the Exchange Act and the rules promulgated thereunder.
"Encumbrances" shall mean any and all liens, charges, security
interests, options, claims, mortgages, pledges, proxies, voting trusts or
agreements, obligations, understandings or arrangements or other restrictions of
any nature whatsoever.
"Owned Shares" means the 19,600,000 shares of Company Common
Stock owned by Mafco on the date hereof, together with any other shares of
Company Common Stock, or any other securities of the Company entitled, or which
may be entitled, to vote generally in the election of directors and any other
shares of Company Common Stock or other equity securities of the Company, any
securities convertible, exchangeable or exercisable for any equity securities of
the Company or any Voting Debt of the Company which may hereafter be owned by
Mafco.
"Person" means an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
"Representative" means, with respect to any Person, such
Person's officers, directors, employees, agents and representatives (including
any investment banker, financial advisor, agent, representative or expert
retained by or acting on behalf of such Person or its subsidiaries).
"Transfer" means, with respect to a security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. As a
verb, "Transfer" shall have a correlative meaning.
2. Representations and Warranties of Mafco. Mafco hereby
---------------------------------------
represents and warrants to Parent and Purchaser as follows:
(a) Upon the consummation of the Offer or exercise of the
Option (as defined in Section 6), Purchaser will acquire good and marketable
title to the Owned Shares, free and clear of all Encumbrances, except for any
Encumbrance arising under the Securities Act of 1933, as amended, or any
applicable state securities laws. The Owned Shares constitute all of the capital
stock of the Company Beneficially Owned by Mafco.
(b) Mafco is a corporation duly organized and validly existing
under the laws of its jurisdiction of incorporation, and is in good standing
under the laws of its jurisdiction of incorporation. Mafco has the corporate
power and authority to execute and deliver this Agreement and perform its
obligations hereunder. The execution, delivery and
2
performance by Mafco of this Agreement and the consummation by Mafco of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Mafco and no other corporate proceedings on the part of
Mafco are necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
(c) This Agreement has been duly and validly executed and delivered by
Mafco and constitutes a valid and binding agreement of Mafco, enforceable
against Mafco in accordance with its terms except (i) to the extent limited by
applicable bankruptcy, insolvency or similar laws affecting creditors rights and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(d) None of the execution and delivery of this Agreement by Mafco, the
consummation by Mafco of the transactions contemplated hereby or compliance by
Mafco with any of the provisions hereof shall (i) conflict with or result in a
breach of any provision of the certificate of incorporation, by-laws or similar
organizational document of Mafco, (ii) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Mafco is a party or by which Mafco or any of its
properties or assets (including the Owned Shares) may be bound, (iii) require on
the part of Mafco any filing with, or permit, authorization, consent or approval
of, any Governmental Entity, other than any filing required to be made under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), any foreign antitrust law or with the Bureau of Alcohol, Tobacco and
Firearms (the "ATF") or the United States Customs Service, or (iv) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Mafco or any of its properties or assets, excluding from the
foregoing such violations, breaches, defaults or failure to make any filing or
to obtain any permit, authorization, consent or approval which would not,
individually or in the aggregate, have a material adverse effect on Mafco, and
which will not materially impair the ability of Mafco to consummate the
transactions contemplated hereby.
(e) Except as set forth on Schedule 2(e) to this Agreement, Mafco is the
record and Beneficial Owner, has sole voting power, sole power of disposition
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to the Owned Shares, subject to applicable securities
laws and the terms of this Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent and
------------------------------------------------------
Purchaser hereby represent and warrant to Mafco as follows:
(a) Each of Parent and Purchaser is a corporation duly organized and
validly existing under the laws of its jurisdiction of incorporation, and each
of them is in good
3
standing under the laws of its jurisdiction of incorporation. Parent and
Purchaser have the corporate power and authority to execute and deliver this
Agreement and perform their respective obligations hereunder. The execution and
delivery by Parent and Purchaser of this Agreement and the performance by Parent
and Purchaser of their respective obligations hereunder have been duly and
validly authorized by the Board of Directors of each of Parent and Purchaser and
no other corporate proceedings on the part of Parent or Purchaser are necessary
to authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered by
Parent and Purchaser and constitutes a valid and binding agreement of each of
Parent and Purchaser, enforceable against each of them in accordance with its
terms except (i) to the extent limited by applicable bankruptcy, insolvency or
similar laws affecting creditors rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) None of the execution and delivery of this Agreement by Parent or
Purchaser, the consummation by Parent or Purchaser of the transactions
contemplated hereby or compliance by Parent or Purchaser with any of the
provisions hereof shall (i) conflict with or result in any breach of the
certificate of incorporation or by-laws of Parent or Purchaser, or (ii) result
in a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent or Purchaser is a party or
by which Parent or Purchaser or any of their respective properties or assets may
be bound, (iii) require on the part of Parent or the Purchaser any filing with,
or permit, authorization, consent or approval of, any Governmental Entity, other
than any filing required to be made under the HSR Act, or any foreign antitrust
law or with the ATF or the United States Customs Service or (iv) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Parent or Purchaser or any of their respective properties or
assets, excluding from the foregoing such violations, breaches, defaults or
failure to make any filing or to obtain any permit, authorization, consent or
approval which would not, individually or in the aggregate, have a material
adverse effect on Parent or the Purchaser, and which will not materially impair
the ability of Parent or the Purchaser to consummate the transactions
contemplated hereby.
4. Tender of Shares. Mafco shall tender or cause the record owner thereof
----------------
to tender, pursuant to and in accordance with the terms of the Offer, and shall
not withdraw, all Owned Shares.
5. Voting of Owned Shares; Proxy. (a) During the period commencing on the
-----------------------------
date hereof and continuing until the earlier of (x) the consummation of the
Offer and (y) the
4
termination of this Agreement (such period being referred to as the "Voting
Period"), at any meeting (whether annual or special, and whether or not an
adjourned or postponed meeting) of the Company's stockholders, however called,
or in connection with any written consent of the Company's stockholders, subject
to the absence of a preliminary or permanent injunction or other requirement
under applicable law by any United States federal, state or foreign court
barring such action, Mafco shall vote (or cause to be voted) all Owned Shares:
(i) in favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the approval and adoption of the Merger and the terms
thereof and each of the other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance thereof and hereof; and
(ii) against any action or agreement that would impede, interfere with, or
prevent the Offer or the Merger. Mafco shall not enter into any agreement,
arrangement or understanding with any Person the effect of which would be
inconsistent or violative of the provisions and agreements contained in this
Section 5.
(b) By its execution hereof and in order to secure its obligations under
this Agreement, during the period commencing on the date hereof, Mafco
irrevocably grants to, and appoints, Parent and Xxxxxxx Lebreau and Xxxx
Xxxxxxx, or either of them, in their respective capacities as employees of
Parent, and any individual who shall hereafter succeed to either of their
respective positions at Parent, and each of them individually, as its true and
lawful proxy and attorney-in-fact (with full power of substitution), for and in
the name, place and stead of it, to vote the Owned Shares or grant a consent or
approval in respect of the Owned Shares in favor of the various transactions
contemplated by the Merger Agreement and against any Acquisition Proposal
("Irrevocable Proxy").
(c) Mafco understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon its execution and delivery of this Irrevocable
Proxy. Mafco hereby affirms that this Irrevocable Proxy is given in connection
with the execution of this Agreement and the Merger Agreement, and further
affirms that this Irrevocable Proxy is coupled with an interest in this
Agreement for the term stated herein and may under no circumstances be revoked.
Mafco hereby ratifies and confirms all that this Irrevocable Proxy may lawfully
do or cause to be done by virtue hereof. This Irrevocable Proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the Delaware General Corporation Law.
6. Option. (a) Mafco hereby grants the Purchaser an irrevocable option (the
------
"Option") to purchase all Owned Shares at a price per share equal to the Offer
Price (the "Option Price"). The Option shall become exercisable, in whole but
not in part, in the event that the Offer is terminated without the Purchaser
purchasing Shares thereunder and such failure to purchase is not in
contravention of the Purchaser's or Parent's obligations under the Merger
Agreement or the Offer.
(b) In any such case, the Option shall remain exercisable until 60 days
after the occurrence of the event giving rise to the right to exercise the
Option (the "60 Day Period"), so long as: (i) all waiting periods under the HSR
Act required for the purchase of
5
the Owned Shares upon such exercise shall have expired or been waived and (ii)
there shall not be in effect any preliminary injunction or other order issued by
any Governmental Entity prohibiting the exercise of the Option pursuant to this
Agreement; provided, that if (i) all HSR Act waiting periods shall not have
expired or been waived or (ii) there shall be in effect any such injunction or
order, in each case on the expiration of the 60 Day Period, the 60 Day Period
shall be extended until five business days after the later of (A) the date of
expiration or waiver of all HSR Act waiting periods and (B) the date of removal
or lifting of such injunction or order, but in no event shall the Option be
exercisable after July 23, 1999. If the Purchaser wishes to exercise the Option,
it or Parent shall send a written notice to Mafco specifying the place and date
(which shall not be fewer than two business days after the date of the notice)
for the closing of the purchase.
(c) It is understood that the Purchaser shall not be entitled to purchase
the Shares pursuant to the Option if the Purchaser shall have failed to purchase
Shares pursuant to the Offer in breach of its obligations under the Merger
Agreement. Upon the purchase of the Owned Shares pursuant to the Option, the
Purchaser shall, unless the Company shall have breached its obligations pursuant
to the last sentence of Section 5.6(d) of the Merger Agreement, subject to
applicable law, offer to purchase any and all remaining Shares of Company Common
Stock at the Option Price, by way of merger or otherwise.
7. Insured Claims. (a) In the event that, after the consummation of the
--------------
Offer, the Company or any of its subsidiaries shall suffer any loss, arising out
of a third party claim or otherwise, that the Parent in good faith notifies
Mafco would be covered by any insurance policy maintained by or for the benefit
of Mafco or any of its affiliates (an "Insured Claim"), Mafco shall present and
cooperate by all reasonable means (including providing access to documents and
witnesses and making witnesses available for testimony at the Company's sole
cost and expense) in the pursuit of claims for payment under such policy in
respect of such loss, but shall not be required to xxx or otherwise litigate
with its insurers (in which case, Mafco shall assign to the Parent all such
rights to xxx under the policies as are assignable under applicable law), and
pay to the Company the proceeds of such claim under such policy as reimbursement
in respect of the amount of such loss, subject to the provisions of this Section
7.
(b) Until the Effective Time, Mafco or the Company shall take all
reasonable steps necessary to ensure the continuation of all such insurance
policies in order to permit the Company to recover under such policies.
(b) Mafco shall not be obligated to present any claim under any such
insurance policy with respect to any Insured Claim unless (i) such Insured Claim
is based upon bodily injury, property damage, wrongful or other acts or another
condition or event that arose or occurred (all as determined under the
applicable insurance policy) prior to the consummation of the Offer and (ii) the
Company or the relevant affiliate of the Company cooperates fully at is expense
with Mafco's insurers in the investigation of such Insured Claim and (in the
case of any Insured Claim arising out of a third party claim) the defense
thereof.
6
(c) The amount of proceeds of any such insurance claim to be paid over to
the Company shall be limited to the amount actually received by Mafco from its
insurers with respect to such claim (net of any self-insured retention amount,
deductible amount, or other amount that Mafco is required to reimburse its
insurers under its contractual agreements with them or to pay prior to the
insurer paying any funds, in each case with respect to such claim, its defense
or investigation), minus the aggregate amount of all reasonable out-of-pocket
expenses incurred by Mafco in presenting such claim (to the extent not paid or
reimbursed by its insurers). Mafco shall not be responsible for any such sums
which would be payable under insurance policies not paid as a result of insurer
bankruptcy, insurer schemes of arrangements, insurer reorganizations, insurer
liquidations, acts of governmental authorities and take overs of the
administration any insurer or other or like situations. Mafco shall not be
required to advance any funds for investigations, defense, or payment of any
judgement or settlement of any claim. In the event Mafco is forced to advance
any such funds because of failure of the Parent or the Purchaser to make prompt
payment of such sums, the Parent shall immediately pay Mafco such funds.
8. Restrictions on Transfer, Other Proxies; No Solicitation.
--------------------------------------------------------
(a) Except as provided in Sections 4, 5 or 6 hereof, Mafco shall not, until
the termination of this Agreement, directly or indirectly: (i) Transfer to any
Person any or all Owned Shares; or (ii) grant any proxies or powers of attorney,
deposit any Owned Shares into a voting trust or enter into a voting agreement,
understanding or arrangement with respect to such Owned Shares. Nothing
contained herein shall prevent Mafco from transferring any or all of the Owned
Shares to an Affiliate of Mafco which agrees to be bound by this Agreement;
provided that Mafco shall continue to remain liable for all its obligations
--------
under this Agreement.
(b) Mafco hereby agrees, in its capacity as a stockholder of the Company,
that it and its subsidiaries or affiliates shall not, and Mafco shall cause its
officers, directors, partners, employees, representatives and agents, including,
but not limited to, investment bankers, attorneys and accountants, not to,
directly or indirectly, (i) initiate, solicit or encourage (including by way of
furnishing non-public information) any inquiries or the making of any proposal
that constitutes or is reasonably likely to lead to an Acquisition Proposal or
(ii) engage in any negotiations or discussions with, or furnish any information
or data, to, any third party relating to an Acquisition Proposal. Mafco will
immediately inform Parent of the terms of any proposal, discussion, negotiation
or inquiry (and will disclose any written materials received by Mafco in
connection with such proposal, discussion, negotiation or inquiry) and the
identity of the party making such proposal or inquiry which Mafco may receive in
respect of any Acquisition Proposal. Mafco will also promptly request each
Person that has heretofore received any non-public information in connection
with its consideration of an Acquisition Proposal to return all such non-public
information furnished to such person by or on behalf of Mafco, the Company or
any of the Company's Subsidiaries. Any action taken by the Company or any member
of the Board of Directors of the Company in his capacity as such in accordance
with the terms of the Merger Agreement shall be deemed not to violate this
Section 7(b).
7
9. Stop Transfer. Mafco shall not request that the Company register the
-------------
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Owned Shares, unless such transfer is made in compliance
with this Agreement.
10. Further Assurances. From time to time, at the other party's request and
------------------
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
11. Waiver of Appraisal Rights. Mafco hereby waives any rights of appraisal
--------------------------
or rights to dissent from the Merger that it may have.
12. Termination. This Agreement, and all rights and obligations of the
-----------
parties hereunder, shall terminate upon the earlier of (a) the date upon which
the Parent shall have purchased and paid for all of the Owned Shares of Mafco in
accordance with the terms of the Offer and (b) the date on which the Option has
expired.
13. Miscellaneous.
-------------
(a) This Agreement and the Indemnification Agreement, dated as of December
16, 1998, constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
(b) Mafco agrees that this Agreement and the respective rights and
obligations of Mafco hereunder shall attach to all Owned Shares.
(c) All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
expenses.
(d) This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties and their respective successors,
personal or legal representatives, executors, administrators, heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party (whether by operation of law or otherwise) without the
prior written consent of the other party; provided, that Parent and the
Purchaser may assign their rights and obligations hereunder to any assignee of
such parties' rights and obligations under the Merger Agreement or to any other
Subsidiary of Parent. Except for the last sentence of Section 6 hereof, which is
intended to benefit the Company's stockholders, nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
8
(e) This Agreement may not be amended, changed, supplemented, or otherwise
modified or terminated, except upon the execution and delivery of a written
agreement executed by each of the parties hereto. The parties may waive
compliance by the other parties hereto with any representation, agreement or
condition otherwise required to be complied with by such other party hereunder,
but any such waiver shall be effective only if in writing executed by the
waiving party.
(f) All notices and other communications hereunder shall be in writing and
shall be deemed given upon (i) transmitter's confirmation of a receipt of a
facsimile transmission, (ii) confirmed delivery by a standard overnight carrier
or when delivered by hand or (iii) the expiration of five business days after
the day when mailed by certified or registered mail, postage prepaid, addressed
at the following addresses (or at such other address for a party as shall be
specified by like notice):
If to Parent
or Purchaser Societe Nationale des Exploitation
Industrielle des Tabacs et Allumettes
53, quai d'Orsay
75347 Xxxxx Xxxxx 00, Xxxxxx
Attention: Xxxxxxx Xxxxxx
Telephone No.: 00.0.00.00.00.00
Telecopy No.: 00.0.00.00.00.00
Attention: Xxxx-Xxxxxxxx Xxxxxxxx
Telephone No.: 00.0.00.00.00.00
Telecopy No.: 00.0.00.00.00.00
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
Xxxxxxxxx Xxxx XXX
0, xxx Xx Xxxxx
00000 Xxxxx, Xxxxxx
Attention: Xxxxx Xxxxxxx, Esq.
Telephone No.: 00.0.00.00.00.00
Telecopy No.: 00.0.00.00.00.00
9
If to Mafco: Mafco Consolidated Group Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: General Counsel
Telecopier Number: (000) 000-0000
Copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxxxxxx X. Xxxxxx, Esq. and
Xxxx X. Xxxxx, Esq.
Telecopier Number: (000) 000-0000
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(g) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without affecting the validity or
enforceability of the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
(h) Each of the parties hereto acknowledges and agrees that in the event of
any breach of this Agreement, each non-breaching party would be irreparably and
immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (a) will waive, in any action for
specific performance, the defense of adequacy of a remedy at law and (b) shall
be entitled, in addition to any other remedy to which they may be entitled at
law or in equity, to compel specific performance of this Agreement.
(i) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) Notwithstanding anything herein to the contrary, nothing set forth
herein shall in any way restrict any director in the exercise of his or her
fiduciary duties as a director of the Company.
10
(k) This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware without giving effect to the principles of
conflicts of law thereof.
(l) The descriptive headings used 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. "Include," "includes," and "including" shall
be deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import.
(m) This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which, taken together, shall constitute one
and the same instrument.
(n) Any legal action or proceeding with respect to this Agreement or any
matters arising out of or in connection with this Agreement or otherwise, and
any action for enforcement of any judgment in respect thereof shall be brought
exclusively in the courts of the State of New York or of the United States of
America for the Southern District of New York, the Court of Chancery of Delaware
or the courts of the United States of America for the District of Delaware and,
by execution and delivery of this Agreement, Mafco, Parent and the Purchaser
each hereby accepts for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the aforesaid courts and
appellate courts thereof. Mafco, Parent and the Purchaser irrevocably consent to
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, or by recognized international express carrier or delivery
service, to Mafco, Parent or the Purchaser at their respective addresses
referred to in Section 12(f) hereof.
(o) Each of Parent and the Purchaser hereby designates CT Corporation as
its respective agent for service of process, and service upon Parent or the
Purchaser shall be deemed to be effective upon service of C T Corporation System
as aforesaid or of its successor designated in accordance with the following
sentence. Parent or the Purchaser may designate another corporate agent or law
firm reasonably acceptable to Mafco and located in the Borough of Manhattan, in
the City of New York, as successor agent for service of process upon 30-days
prior written notice to Mafco.
(p) Mafco, Parent and the Purchaser each hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement or otherwise brought in the courts referred to above and hereby
further irrevocably waives and agrees, to the extent permitted by applicable
law, not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of any party hereto to serve process in any other
manner permitted by law.
11
IN WITNESS WHEREOF, Parent, Purchaser and Mafco have caused this Agreement
to be duly executed as of the day and year first above written.
SOCIETE NATIONALE D'EXPLOITATION
INDUSTRIELLE DES TABACS ET
ALLUMETTES, S.A.
By: /s/ Xxxx-Xxxxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxx-Xxxxxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
DORSAY ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
MAFCO CONSOLIDATED GROUP INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
