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EXHIBIT 2
FORM OF TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT, dated as of March 27, 1998 (the "Agreement"),
by and among Dorel Industries Inc., a Quebec corporation ("Acquiror"), Horizon
Acquisition, Inc., a Delaware corporation and a wholly-owned subsidiary of
Acquiror ("Merger Sub"), and [ ] (the "Shareholder").
WHEREAS, the Shareholder is the owner of [ ] shares (the
"Shares") of Common Stock, par value $1.00 per share (the "Common Stock"), of
Ameriwood Industries International Corporation (the "Company");
WHEREAS, the Acquiror, Merger Sub and the Company have entered into an
Agreement and Plan of Merger, dated as of the date hereof (as amended from time
to time, the "Merger Agreement"), which provides, among other things, that, upon
the terms and subject to the conditions therein, Merger Sub will make a cash
tender offer (the "Offer") for all of the outstanding shares of Common Stock and
after expiration of the Offer will merge with and into the Company (the
"Merger"); and
WHEREAS, as a condition to the willingness of Acquiror and Merger Sub to
enter into the Merger Agreement, Acquiror has requested that the Shareholder
agree, and in order to induce Acquiror and Merger Sub to enter into the Merger
Agreement, the Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1. Representations and Warranties of the Shareholder. The Shareholder
represents and warrants to the Acquiror as follows:
a. The Shareholder is the sole record and beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of the Shares and, there exist no liens, claims, security
interests, options, proxies, voting agreements, charges, obligations,
understandings, arrangements or other encumbrances of any nature
whatsoever, except for restrictions applicable thereto under federal and
state securities laws ("Liens"), affecting the Shares.
b. The Shares and the certificates representing the Shares are now and
at all times during the term hereof will be held by the Shareholder, or by
a nominee or custodian for the benefit of the Shareholder free and clear of
all Liens, except for the Liens described in (a) above and Liens arising
hereunder. Upon transfer to Acquiror by the Shareholder of the Shares
hereunder, Acquiror will have good and marketable title to the Shares, free
and clear of all Liens.
c. This Agreement has been duly and validly executed and delivered by
the Shareholder and, assuming due authorization, execution and delivery by
Acquiror and Merger Sub, constitutes a valid and binding agreement of the
Shareholder, enforceable against the Shareholder in accordance with its
terms, except to the extent that enforceability may be limited by
applicable bankruptcy or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
d. The execution and delivery of this Agreement by the Shareholder
does not, and the performance by the Shareholder of its obligations
hereunder will not, constitute a violation of, conflict with, result in a
default (or an event which, with notice or lapse of time or both, would
result in a default) under, or result in the creation of any Lien on any
Shares under, (i) any contract, commitment, agreement, partnership
agreement, understanding, arrangement or restriction of any kind to which
the Shareholder is a party or by which the Shareholder is bound, (ii) any
judgment, writ, decree, order or ruling applicable to the Shareholder or
(iii) any law applicable to the Shareholder.
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e. To the Shareholder's knowledge, neither the execution and delivery
of this Agreement nor the performance by the Shareholder of its obligations
hereunder will require any consent, authorization or approval of, filing
with or notice to, any court, administrative agency or other governmental
body or authority, other than any required notices or filings pursuant to
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder (the "HSR Act"), state
antitrust laws or the federal securities laws.
2. Representations and Warranties of Acquiror and Merger Sub. Acquiror and
Merger Sub jointly and severally represent and warrant to the Shareholder as
follows:
a. Each of Acquiror and Merger Sub is duly organized and validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has the requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. This Agreement has
been duly and validly executed and delivered by each of Acquiror and Merger
Sub and constitutes the legal, valid and binding obligation of each of
Acquiror and Merger Sub, enforceable against each of Acquiror and Merger
Sub in accordance with its terms, except to the extent that enforceability
may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
b. The execution and delivery of this Agreement by each of Acquiror
and Merger Sub does not, and the performance by each of Acquiror and Merger
Sub of its obligations hereunder will not, constitute a violation of,
conflict with, or result in a default (or an event which, with notice or
lapse of time or both, would result in a default) under, its charter or
bylaws or any contract, commitment, agreement, understanding, arrangement
or restriction of any kind to which Acquiror or Merger Sub is a party or by
which Acquiror or Merger Sub is bound or any judgment, writ, decree, order
or ruling applicable to Acquiror or Merger Sub.
c. Neither the execution and delivery of this Agreement nor the
performance by each of Acquiror and Merger Sub of its obligations hereunder
will violate any order, writ, injunction, judgment, law, decree, statute,
rule or regulation applicable to Acquiror or Merger Sub or require any
consent, authorization or approval of, filing with, or notice to, any
court, administrative agency or other governmental body or authority, other
than any required notices or filings pursuant to the HSR Act, state
antitrust laws or the federal securities laws.
3. Tender of Shares.
a. Acquiror and Merger Sub jointly and severally agree:
i. subject to the conditions of the Offer set forth in Annex A to
the Merger Agreement and the other terms and conditions of the Merger
Agreement, that Merger Sub will purchase all shares of Common Stock
tendered pursuant to the Offer as promptly as practicable following
commencement of the Offer and that Merger Sub will consummate the Merger
in accordance with the terms of the Merger Agreement;
ii. not to decrease the price per share to be paid to the Company's
shareholders in the Offer below $9.625 per share (the "Tender Offer
Price"); and
iii. to deliver, or to cause to be delivered, the Offer Documents
to the Shareholder. The provisions of Sections 3(a)(i) and 3(a)(ii)
shall survive the termination of this Agreement.
b. The Shareholder will (i) tender the Shares into the Offer promptly,
and in any event no later than the fifth business day following the
commencement of the Offer, or, if the Shareholder has not received the
Offer Documents by such time, within two business days following receipt of
such documents, and (ii) not withdraw any Shares so tendered (except in the
event the Stock Option is exercised). Upon the purchase of all the Shares
pursuant to the Offer in accordance with this Section 3, this Agreement
will terminate. The Shareholder will receive the same price per Share
received by other shareholders of the
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Company in the Offer with respect to Shares tendered by it in the Offer. In
the event that, notwithstanding the provisions of the first sentence of
this Section 3(b), any Shares are for any reason withdrawn from the Offer
or are not purchased pursuant to the Offer, such Shares will remain subject
to the terms of this Agreement. The Shareholder acknowledges that Merger
Sub's obligation to accept for payment and pay for the Shares in the Offer
is subject to all the terms and conditions of the Offer. On the date the
Shares are accepted for payment and purchased by Merger Sub pursuant to the
Offer, Merger Sub or Acquiror, as the case may be, shall make payment by
wire transfer or other method (as agreed by Merger Sub and the Shareholder)
to the Shareholder of the purchase price for such Shares to an account
designated by the Shareholder.
c. The Shareholder hereby agrees to permit Acquiror to publish and
disclose in the Offer Documents and, if approval of the shareholders of the
Company is required under applicable law, the Proxy Statement, its identity
and ownership of Common Stock and the nature of its commitments,
arrangements and understandings under this Agreement.
4. Option to Purchase.
a. The Shareholder hereby grants to Acquiror, subject to the terms and
conditions hereof, an irrevocable option (the "Stock Option") to purchase
the Shares at a purchase price per share of $9.625 per Share (the "Exercise
Price") in cash, in the manner set forth in this Section 4. At any time
prior to the termination of the Stock Option hereunder, Acquiror (or a
wholly owned subsidiary of Acquiror) may exercise the Stock Option, in
whole only, if on or after the date hereof:
i. any corporation, partnership, individual, trust, unincorporated
association, or other entity or "person" (as defined in Section 13(d)(3)
of the Exchange Act) other than Acquiror or any of its "affiliates" (as
defined in the Exchange Act) (a "Third Party"), will have:
A. commenced or announced an intention to commence a bona fide
tender offer or exchange offer for any shares of Common Stock, the
consummation of which would result in "beneficial ownership" (as
defined in the Exchange Act) by such Third Party (together with all
such Third Party's affiliates and "associates" (as defined in the
Exchange Act)) of 35% or more of the then outstanding voting equity
of the Company (either on a primary or a fully diluted basis);
B. acquired beneficial ownership of shares of Common Stock that,
when aggregated with any shares of Common Stock already owned by such
Third Party, its affiliates and associates, would result in the
aggregate beneficial ownership by such Third Party, its affiliates
and associates of 15% or more of the then outstanding voting equity
of the Company (either on a primary or a fully diluted basis);
provided, however, that "Third Party" for purposes of this clause (B)
does not include any corporation, partnership, person, other entity
or group that beneficially owns more than 15% of the outstanding
voting equity of the Company (either on a primary or a fully diluted
basis) as of the date hereof and that does not, after the date
hereof, increase such ownership percentage by more than an additional
1% of the outstanding voting equity of the Company (either on a
primary or a fully diluted basis);
C. acquired assets constituting 15% or more of the total assets
or earning power of the Company taken as a whole;
D. entered into an agreement with the Company that contemplates
the acquisition of (x) assets constituting 15% or more of the total
assets or earning power of the Company taken as a whole or (y)
beneficial ownership of 15% or more of the outstanding voting equity
of the Company; or
ii. any of the events described in Section 8.1(c)(i) of the Merger
Agreement that would allow the Company to terminate the Merger Agreement
has occurred (after the passage of any time periods set forth in such
sections but without the necessity of the Company having terminated the
Merger Agreement).
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In the event that Acquiror wishes to exercise the Stock Option,
Acquiror shall give written notice (the "Option Notice", with the date
of the Option Notice being hereinafter called the "Notice Date") to the
Shareholder specifying the place and date (not earlier than three nor
later than ten Business Days from the Notice Date) for closing such
purchase (a "Closing"). Acquiror's obligation to purchase the Shares
upon any exercise of the Stock Option and the Shareholder's obligation
to sell the Shares upon any exercise of the Stock Option are subject (at
the election of Acquiror and the Shareholder, respectively,) to the
conditions that (i) no preliminary or permanent injunction or other
order prohibiting the purchase, issuance or delivery of the Shares
issued by any Governmental Authority will be in effect and (ii) any
applicable waiting period required for the purchase of Shares under the
HSR Act will have expired or been terminated or clearance from the
appropriate agencies shares have been obtained, provided that if such
injunction or other order has become final and nonappealable, the Stock
Option shall terminate; and provided further, that if the Stock Option
is not exercisable because either of the circumstances described in the
immediately foregoing clause (i) or (ii) exist, then the Stock Option
shall be exercisable for the ten business day period commencing on the
date that the circumstances set forth in clause (i) or (ii), as
applicable, cease to exist, but in no event shall the Stock Option be
exercisable after the date set forth in Section 9(c). Acquiror's
obligation to purchase the Shares upon exercise of the Stock Option is
further subject (at Acquiror's election) to the condition that there
will have been no material breach of the representations, warranties,
covenants or agreements of the Shareholder contained in this Agreement
or of the Company contained in the Merger Agreement which breach has not
been cured within ten business days of the receipt of written notice
thereof from the Acquiror. The Shareholder's obligation to sell the
Shares upon exercise of the Stock Option and the Shareholder's
obligations under Section 7 are subject (at the Shareholder's election)
to the further conditions that there will have been no material breach
of the representations, warranties, covenants or agreements of Acquiror
or Merger Sub contained in this Agreement or contained in the Merger
Agreement, which breach has not been cured within ten business days of
the receipt of written notice thereof from the Shareholder.
b. At the Closing, (i) the Shareholder shall deliver to Acquiror the
certificate or certificates representing the Shares in proper form for
transfer upon exercise of the Stock Option in the denominations designated
by Acquiror in the Option Notice and (ii) Acquiror shall pay the aggregate
purchase price for the Shares by wire transfer of immediately available
funds to an account designated by the Shareholder in writing to Acquiror in
the amount equal to the product of the Exercise Price and the number of the
Shares.
c. In the event that Acquiror or Merger Sub pays a price higher than
$9.625 per share for Shares tendered into the Offer, the Exercise Price
shall be increased to equal such higher price.
d. In the event that Acquiror or Merger Sub exercise the Stock Option
and subsequent to such exercise either (i) Acquiror or Merger Sub pays
consideration in excess of the Exercise Price for the Common Stock pursuant
to the Merger (a "Higher Price"), or (ii) (A) a Third Party commences a
bona-fide tender offer or exchange offer for Common Stock for consideration
in excess of the Exercise Price (the "Excess Consideration"), (B) the
Company terminates the Merger Agreement in accordance with the provisions
of Section 8.1(c)(i) thereof, (C) prior to such termination, but after
receiving notice of the Company's intention to so terminate, Acquiror or
Merger Sub exercises the Stock Option and (D) Acquiror or Merger Sub
tenders the Shares it received upon the exercise of the Stock Option in
such tender offer or exchange offer and receives Excess Consideration with
respect to such Shares, then, in the case of (i) above, Acquiror or Merger
Sub shall pay to the Shareholder in cash, within five days after Acquiror
or Merger Sub pays the Higher Price to holders of Common Stock, an amount
equal to the number of Shares multiplied by the difference between the
Higher Price and the Exercise Price, and in the case of (ii) above,
Acquiror or Merger Sub shall pay to the Shareholder in cash, within five
days after Acquiror or Merger Sub receives the Excess Consideration to
holders of Common Stock, an amount equal to the number of Shares multiplied
by the difference between the Excess Consideration and the Exercise Price.
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e. The Shareholder has granted the Stock Option to Acquiror in order
to induce Acquiror to enter into and consummate the transactions
contemplated by the Merger Agreement. Acquiror and Merger Sub covenant and
agree that they will perform their respective obligations under the Merger
Agreement. The provisions of this Section 4(e) are intended both for the
benefit of the Shareholder and for the benefit of the Company and may not
be modified, waived or amended without the consent of the Company.
5. Transfer of the Shares.
a. During the term of this Agreement, the Shareholder will not (i)
offer to sell, sell, pledge or otherwise dispose of or transfer any
interest in or encumber with any Lien any of the Shares, (ii) enter into
any contract, option or other agreement or understanding with respect to
any transfer of any or all of the Shares or any interest therein; (iii)
grant any proxy, power-of-attorney or other authorization or consent in or
with respect to the Shares; (iv) deposit the Shares into a voting trust or
enter into a voting agreement or arrangement with respect to the Shares; or
(v) take any other action with respect to the Shares that would in any way
restrict, limit or interfere with the performance of its obligations
hereunder.
b. The Shareholder agrees to place the following legend on any and all
certificates evidencing the Shares:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN TENDER AND
OPTION AGREEMENT, DATED AS OF MARCH 27, 1998, BY AND BETWEEN DOREL
INDUSTRIES INC., HORIZON ACQUISITION, INC. AND [ ]. ANY
TRANSFER OF SUCH SHARES OF COMMON STOCK IN VIOLATION OF THE TERMS OF
SUCH AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
6. Certain Other Agreements. The Shareholder shall notify Acquiror
immediately if any proposals are received by, any information is requested from,
or any negotiations or discussions are sought to be initiated or continued with
the Shareholder or his attorneys, accountants or other agents (each of such
actions, an "Interest"), in each case in connection with any Acquisition
Proposal indicating, in connection with such notice, the name of the person
indicating such Interest and the terms and conditions of any related proposals
or offers. The Shareholder agrees to cease immediately and cause to be
terminated immediately any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any Acquisition Proposal. In
addition, the Shareholder agrees to keep Acquiror informed, on a current basis,
of the status and terms of any Acquisition Proposal. The Shareholder furthermore
agrees not to, and will use his best efforts to ensure that his attorneys,
accountants and other agents do not, directly or indirectly: (i) initiate,
solicit or encourage, or take any action to facilitate the making of, any offer
or proposal that constitutes or is reasonably likely to lead to any Acquisition
Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal
or (iii) in the event of an unsolicited written proposal in respect of an
Acquisition Proposal, engage in negotiations or discussions with, or provide any
information or data to, any person (other than Acquiror, any of its affiliates
or representatives and except for information that has been previously publicly
disseminated by the Company) relating to any Acquisition Proposal. The
obligations provided for in this Section 6 shall become effective immediately
following the execution and delivery of this Agreement by the parties hereto.
7. Voting of Shares; Grant of Irrevocable Proxy; Appointment of Proxy.
a. The Shareholder hereby agrees that, during the term of this
Agreement, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the holders of Common Stock, however
called, or in connection with any written consent of the holders of Common
Stock, the Shareholder will appear at the meeting or otherwise cause the
Shares to be counted as present thereat for purposes of establishing a
quorum and vote or consent (or cause to be voted or consented) the Shares
(i) in favor of the Merger and (ii) against any action or agreement that
would impede, interfere with or prevent the Merger, including any other
extraordinary corporate transaction, such as a merger, reorganization or
liquidation involving the Company and a third party or any other proposal
of a third party to acquire the Company and (iii) if requested by Acquiror,
in favor of a shareholder resolution proposed by Acquiror in accordance
with applicable provisions of the Michigan Business Corporation Act
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(the "MBCA") the purpose of which is to cause the Offer and the Merger to
be consummated and which does not relate to the election of directors.
b. The Shareholder hereby irrevocably grants to, and appoints,
Acquiror and any nominee thereof, its proxy and attorney-in-fact (with full
power of substitution) during the term of this Agreement, for and in the
name, place and stead of the Shareholder, to vote the Shares, or grant a
consent or approval in respect of the Shares, in connection with any
meeting of the shareholders of the Company (i) in favor of the Merger and
(ii) against any action or agreement that would impede, interfere with or
prevent the Merger, including any other extraordinary corporate
transaction, such as a merger, reorganization or liquidation involving the
Company and a third party or any other proposal of a third party to acquire
the Company.
c. The Shareholder represents that all proxies heretofore given in
respect of the Shares, if any, are not irrevocable, and hereby revokes all
such proxies given with respect to the Shares.
d. The Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 7 is given in connection with the execution of the Merger
Agreement and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy set forth in
this Section 7 is coupled with an interest and is intended to be
irrevocable in accordance with the provisions of Section 212 of the
Delaware General Corporation Law and Section 422 of the MBCA.
8. Adjustments. The number and types of securities subject to this
Agreement will be appropriately adjusted in the event of any stock dividends,
stock splits, recapitalization, combinations, exchanges of shares or the like or
any other action that would have the effect of changing the Shareholder's
ownership of the Company's capital stock.
9. Termination. Except as otherwise specifically provided herein, all
obligations under this Agreement will terminate on the earliest of (a) the date
the Merger Agreement is terminated in accordance with its terms or the date the
Offer is terminated by Acquiror or Merger Sub as a result of any failure of a
condition of the Offer; provided, however, that the provisions of Sections 4(a)
shall not terminate until sixty (60) days thereafter (or such later time as
permitted by Section 4(a)) if the Merger Agreement was terminated pursuant to
Section 8.1(c)(i) thereof, (b) the purchase of all the Shares pursuant to the
Offer in accordance with Section 3 or pursuant to the Stock Option, or (c) on
September 30, 1998. The provisions of Section 13 shall survive any termination
of this Agreement.
10. Effectiveness. This Agreement shall not be effective unless and until
the Merger Agreement shall have been approved by the Company's Board of
Directors.
11. Brokerage. Acquiror, Merger Sub and the Shareholder represent and
warrant to the other that the negotiations relevant to this Agreement have been
carried on by Acquiror and Merger Sub, on the one hand, and the Shareholder, on
the other hand, directly with the other, and that there are no claims for
finder's fees or brokerage commissions or other like payments in connection with
this Agreement or the transactions contemplated hereby. Acquiror and Merger Sub,
on the one hand, and Shareholder, on the other hand, will indemnify and hold
harmless the other from and against any and all claims or liabilities for
finder's fees or brokerage commissions or other like payments incurred by reason
of action taken by him, it or any of them, as the case may be.
12. Miscellaneous.
a. Except for the representations and warranties set forth in Section
1(a) and l(b), all representations and warranties contained herein will
terminate upon the termination of this Agreement.
b. Any provisions of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment
or supplement will be effective unless in writing and is signed by the
party or parties sought to be bound thereby. Any waiver by any party of a
breach of any provision of this Agreement will not operate as or be
construed to be a waiver of any other breach of such provisions or of any
breach of any other provision of this Agreement. The failure of a party to
insist upon
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strict adherence to any term of this Agreement or one or more sections
hereof will not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
c. This Agreement contains the entire agreement among the parties in
respect to the subject matter hereof, and supersedes all prior agreements
among the parties with respect to such matters. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon
the delivery of a written agreement executed by the parties hereto.
d. This Agreement will be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and
performed in that state. 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 (i) will
waive, in any action for specific performance, the defense of adequacy of a
remedy at law and (ii) will 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 in any action instituted in any state or
federal court sitting in Wilmington, Delaware. Capitalized terms used and
not otherwise defined herein shall have the meanings set forth in the
Merger Agreement.
e. The descriptive headings contained herein are for convenience and
reference only and will not affect in any way the meaning or interpretation
of this Agreement.
f. All communications or notices required or permitted by this
Agreement shall be in writing and shall be deemed to have been given at the
earlier of the date personally delivered or sent by telephonic facsimile
transmission (with a copy via regular mail) or one day after sending via
nationally recognized overnight courier or five days after deposit in the
United States mail, certified or registered mail, postage prepaid, return
receipt requested, and addressed as follows, unless and until any of such
parties notifies the others in accordance with this Section of a change of
address:
If to Shareholder to:
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to Acquiror or Merger Sub to:
[ ]
[ ]
[ ]
with a copy to:
[ ]
[ ]
[ ]
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or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
g. This Agreement may be executed in any number of counterparts, each
of which will be deemed to be an original, but all of which together will
constitute one agreement.
h. This Agreement is binding upon and is solely for the benefit of the
parties hereto and their respective successors, legal representatives and
assigns. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned by any of the parties
hereto without the prior written consent of the other parties.
i. If any term or other provision of this Agreement is determined to
be invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect as long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party hereto. Upon any such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto will negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions
contemplated by this Agreement are consummated to the extent possible.
j. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either
party will not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
13. Expenses. Except as provided in Section 4 hereof, all fees and expenses
incurred by any one party hereto shall be borne by the party incurring such fees
and expenses.
14. Further Assurances; Shareholder Capacity.
a. The Shareholder shall, upon request of Acquiror or Merger Sub,
execute and deliver any additional documents and take such further actions
as may reasonably be deemed by Acquiror or Merger Sub to be necessary or
desirable to carry out the provisions hereof and to vest the power to vote
the Shares as contemplated by Section 7 hereof in Acquiror.
b. Nothing in this Agreement shall be construed to prohibit any
affiliate of the Shareholder who is a member of the Board of Directors of
the Company from taking any action solely in his capacity as a member of
the Board of Directors of the Company to the extent specifically permitted
by the Merger Agreement or as required by applicable law.
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IN WITNESS WHEREOF, the Acquiror, Merger Sub and the Shareholder have
caused this Agreement to be signed by their respective officers or
representatives thereunto duly authorized, all as of the date first written
above.
DOREL INDUSTRIES INC.
By:
-----------------------------------
Name:
Title:
HORIZON ACQUISITION, INC.
By:
-----------------------------------
Name:
Title:
-----------------------------------
[ ], as Shareholder
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