EXHIBIT 10.5
AFFILIATE'S AGREEMENT
This AGREEMENT (this "Agreement") is made as of April 23, 1999, by and
among Xxxxxxx Industrial Group, Inc., a Delaware corporation (the "Parent"), and
the undersigned stockholder (the "Undersigned") of Bronze, Inc., a Delaware
corporation (the "Company"). Reference is made to that certain Agreement and
Plan of Merger, dated April 23, 1999 (the "Merger Agreement"), by and among
Parent, Bronze Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Parent (the "Purchaser"), and the Company.
WHEREAS, pursuant to the Merger Agreement, Parent, Purchaser and the
Company are contemplating a merger of Purchaser with and into the Company (the
"Merger"), pursuant to which the Company will become a wholly owned subsidiary
of Parent;
WHEREAS, the Merger is contingent upon the approval of the Merger and
the Merger Agreement by the Company's stockholders at a special meeting of the
Company's stockholders, and the Undersigned desires to facilitate the Merger by
agreeing to vote the Undersigned's shares of the Company's Common Stock, $.01
par value (the "Common Stock") and any shares of Common Stock of the Company
over which the Undersigned has voting control in favor of the Merger and the
Merger Agreement;
WHEREAS, the Undersigned desires irrevocably to appoint Parent or any
designee of Parent as the Undersigned's lawful agent, attorney and proxy to vote
in favor of the Merger and the Merger Agreement; and
WHEREAS, in accordance with the Merger Agreement, shares of Common
Stock owned by the Undersigned at the Effective Time (as defined in the Merger
Agreement) shall be converted into the right to receive cash in accordance with
the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants set forth in the Merger Agreement and hereinafter in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Undersigned agrees as follows:
1. Transfer Restriction. The Undersigned will not sell, transfer or
otherwise dispose of, or reduce his or its interest in any shares of Common
Stock currently owned or hereafter acquired by him or it prior to the
termination of this Agreement.
2. Irrevocable Proxy. The Undersigned hereby irrevocably appoints
Parent or any designee of Parent as the Undersigned's lawful agent, attorney and
proxy to vote or give consents with respect to all shares of Common Stock held
by the Undersigned and all shares of Common Stock over which the Undersigned has
voting control, in favor of the approval of the Merger and the Merger Agreement
and any matters incidental thereto. The Undersigned intends this proxy to be
irrevocable and coupled with an interest. Parent agrees that it or its designee
shall vote the shares of Common Stock held by the Undersigned and the shares of
Common Stock over which the Undersigned
has voting control in favor of the approval of the Merger and the Merger
Agreement. The agents, attorneys and proxies named herein may not exercise this
proxy on any other matter except as provided herein. The Undersigned may vote
all shares of Common Stock held by the Undersigned and all shares of Common
Stock over which the Undersigned has voting control on all other matters.
3. Voting Agreement. If the Parent cannot or does not for any reason
vote the proxy granted to the Parent in Section 2, above, at a special meeting
of the stockholders of the Company called for the purpose of considering the
approval of the Merger and the Merger Agreement, the Undersigned agrees to vote
all of the shares of Common Stock held by the Undersigned and all shares of
Common Stock over which the Undersigned has voting control in favor of the
Merger and the Merger Agreement.
4. No Shopping. The Undersigned, in his capacity as a stockholder of
the Company, shall not directly or indirectly (i) solicit, initiate or encourage
(or authorize any person to solicit, initiate or encourage) any inquiry,
proposal or offer from any person (other than Parent) to acquire the business,
property or capital stock of the Company or any direct or indirect subsidiary
thereof, or any acquisition of a substantial equity interest in, or a
substantial amount of the assets of, the Company or any direct or indirect
subsidiary thereof, whether by merger, purchase of assets, tender offer or other
transaction or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or otherwise
cooperate in any way with, or participate in, facilitate or encourage any effort
or attempt by any person (other than Parent) to do or seek any of the foregoing.
Notwithstanding any provision of this Section 4 to the contrary, the
Undersigned, as a member of the Company's Board of Directors, may take actions
in such capacity permitted under the Merger Agreement.
5. Miscellaneous.
(a) By signing below, the Undersigned represents and warrants
that the Undersigned has all necessary power and authority to execute this
Agreement and to cause the Undersigned's shares of Common Stock and the shares
of Common Stock over which the Undersigned has voting control, to be voted as
provided herein, and the Undersigned has duly authorized, executed and delivered
this Agreement.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflict of laws thereof.
(c) This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any and all of the parties hereto may execute this Agreement by
signing any such counterpart.
(d) This Agreement shall terminate upon the earlier to occur
of (i) the Effective Date or (ii) termination of the Merger Agreement in
accordance with the terms thereof.
(e) This Agreement shall be binding on the Undersigned's
successors and assigns, including his heirs, executors and administrators.
(f) The undersigned has carefully read this agreement and
discussed its requirements, to the extent the Undersigned believed necessary,
with its counsel or counsel for the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XXXXXXX INDUSTRIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
STOCKHOLDER:
/s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx
