Exhibit No. 10.28
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT dated as of July 31, 1998 among Nationwide Warehouse
& Storage, Inc., an Ohio corporation (the "Company"), Room Plus, Inc., a New
York corporation ("Parent"), Room Plus Sub, Inc., an Ohio corporation and a
wholly owned subsidiary of Parent ("Sub"), and Xxxxx Xxxxxx (the "Stockholder").
WHEREAS, Parent, Sub and the Company propose to enter into an Agreement
and Plan of Merger of even date herewith (as the same may be amended or
supplemented, the "Merger Agreement") providing for the merger of the Company
with and into the Sub (the "Merger");
WHEREAS, the Stockholder owns the number of shares of Common Stock, par
value $.00133 per share, of the Parent (the "Parent Common Stock") set forth
opposite the Stockholder's name on the signature page hereof; such shares of
Parent Common Stock, as such shares may be adjusted by any stock dividend, stock
split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the Parent
being referred to herein as the "Subject Shares"; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Company has requested that the Stockholder enter into this
Agreement;
NOW, THEREFORE, to induce the Company to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the premises
and the representations, warranties and agreements contained herein, the parties
agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to the Company as follows:
(a) Authority. The Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder enforceable in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time or both) under any provision of, any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to the
Stockholder or to the Stockholder's property or assets. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental authority or
instrumentality, domestic, foreign or supranational, is required by or with
respect to the
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Stockholder in connection with the execution and delivery of this Agreement or
the ability of the Stockholder to perform his obligations contemplated hereby.
(b) The Subject Shares. The Stockholder is the beneficial owner of
and has good and marketable title to the Subject Shares, free and clear of any
claims, liens, encumbrances and security interests whatsoever; provided,
however, that the Subject Shares are subject to Rule 144 under the Securities
Act of 1933, as amended. The Subject Shares constitute all the capital stock of
the Parent owned beneficially or of record by the Stockholder.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Stockholder that the Company has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms.
3. Covenants of the Stockholder.
(a) The Stockholder agrees to attend the meeting of stockholders
of the Parent to be called with respect to the Merger (including any adjournment
thereof) in person or by proxy. At any meeting of stockholders of the Parent
called to vote upon the Merger and the Merger Agreement or at any adjournment
thereof or in any other circumstances upon which a vote, consent or other
approval with respect to the Merger and the Merger Agreement is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares, and any other
voting securities of the Parent, owned by Stockholder whether issued heretofore
or hereafter, that such person owns or has the right to vote, in favor of the
Merger, the adoption by the Parent of the Merger Agreement and the approval of
0he terms thereof and each of the other transactions contemplated by the Merger
Agreement, including, if required, in favor of the issuance of warrants to the
Company and/or Xxxxx X. Xxxxxxx.
(b) At any meeting of stockholders of the Parent or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or cause
to be voted) the Subject Shares, and any other voting securities of the Company,
owned by Stockholder whether issued heretofore or hereafter, that such person
owns or has the rights to vote, against (i) any merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation, combination,
sale of substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Parent or any other Acquisition
Transaction, or (ii) any amendment of the Parent's certificate of incorporation
or by-laws or other proposal or transaction involving the Parent or any of its
subsidiaries, which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or
any of the other transactions
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contemplated by the Merger Agreement or which could result in any of the
conditions to the Parent's obligations under the Merger Agreement not being
fulfilled.
(c) The Stockholder agrees not to (i) sell, transfer, pledge,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to the sale,
transfer, pledge, assignment or other disposition of, the Subject Shares to any
person or (ii) enter into any voting arrangement, whether by proxy, voting
arrangement, voting agreement or otherwise, in connection, directly or
indirectly, with any Acquisition Transaction.
(d) Until the Merger Agreement is terminated and subject to
Section 8 hereof, the Stockholder shall not, and shall use his best efforts to
cause any investment banker, attorney or other adviser or representative of the
Stockholder not to, (i) directly or indirectly solicit, initiate or knowingly
encourage the submission of, any Acquisition Transaction or (ii) directly or
indirectly participate in any discussions or negotiations regarding, or furnish
to any person any information with respect to, or knowingly take any other
action to facilitate any inquiries or the making of any proposal that
constitutes, or would reasonably be expected to lead to, any Acquisition
Transaction.
(e) To secure the Stockholder's commitments set forth in this
Section 3, the Stockholder constitutes and appoints the Company or its officers
and each of them, with full power of substitution, to be his true and lawful
proxy and attorney-in-fact from the date hereof until conclusion of the meeting
of stockholders of the Parent as provided in this Section 3 (including any
adjournment or adjournments thereof) to vote all Subject Shares then
beneficially owned by the Stockholder in accordance with this Section 3. This
proxy shall be deemed coupled with an interest, and is irrevocable during the
term of this Agreement and will survive death, incompetency and disability of
the Stockholder. To the extent inconsistent with this Section 3 hereof, the
Stockholder hereby revokes any and all previous proxies or written consents with
respect to the Subject Shares.
4. Further Assurances. The Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as the
Company may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
5. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties, except that the Company may assign,
in its sole discretion, any or all of its rights, interests and obligations
hereunder to its stockholders or to any direct or indirect wholly owned
subsidiary of the Company. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors, assigns, heirs, legal representatives and
executors.
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6. Termination. This Agreement shall terminate upon the earliest of (i)
the close of business on the first anniversary of the date hereof, (ii) the
Effective Time (as defined in the Merger Agreement) and (iii) the termination of
the Merger Agreement in accordance with its terms (other than pursuant to
Section 9.1(c) thereof).
7. General Provisions.
(a) Specific Performance. The parties hereto acknowledge that
damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agree that the obligations of the parties hereunder shall be
specifically enforceable.
(b) Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. Subject to Section 6 hereof, this Agreement may
not be amended except by an instrument in writing signed by each of the parties
hereto.
(d) Notice. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(i) if to Parent, to:
Nationwide Warehouse & Storage, Inc.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
and
(ii) if to the Stockholder, at the address set forth beneath
his name.
(e) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the
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meaning or interpretation of this Agreement. Wherever the words "include",
"includes", or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation". Capitalized terms used herein but
not otherwise defined herein shall have the meanings set forth in the Merger
Agreement.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(g) Entire Agreement: No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
8. Stockholder Capacity. The Stockholder signs solely in its capacity
as the record holder and beneficial owner of the Subject Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his
capacity as an officer or director of the Parent to the extent specifically
permitted by the Merger Agreement.
9. Enforcement. The parties 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 of this Agreement in any court of the United States
located in the State and City of New York or in a New York state court located
in Manhattan, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (i)
consents to submit such party to the personal jurisdiction of any Federal court
located in the State and City of New York or any New York state court located in
Manhattan in the event any dispute arises out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, (iii) agrees that such party will not bring any
action relating to this Agreement or any of the transactions contemplated hereby
in any court other than a Federal court sitting in the State and City of New
York or a New York state court located in Manhattan and (iv) waives any right to
trial by jury with respect to any claim or proceeding related to or arising out
of this Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as
of the date first written above.
NATIONWIDE WAREHOUSE & STORAGE, INC.
By: /s/ Xxxxx X. Xxxxxxx
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ROOM PLUS, INC.
By: /s/ Xxxx Xxxxxx
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ROOM PLUS SUB, INC.
By: /s/ Xxxx Xxxxxx
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Number of Shares of
Common Stock owned: 422,499 /s/ Xxxxx Xxxxxx
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Stockholder: Xxxxx Xxxxxx
Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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