Exhibit 18
AMENDMENT AND TERMINATION AGREEMENT
This AMENDMENT AND TERMINATION AGREEMENT (the "AGREEMENT") is made and
entered into as of April 10, 2001, by and among Foilmark, Inc., a Delaware
corporation ("FOILMARK"), HoloPak Technologies, Inc., a Delaware corporation
(formerly known as TPF Holding Company) (the "COMPANY") and Xxxx X. Xxxxxxxx
(the "OPTION HOLDER").
WHEREAS, the Company and the Option Holder entered into a Stock Option
Agreement, dated as of January 4, 1990 (the "OPTION AGREEMENT"), whereby the
Option Holder was granted an option (the "OPTION") to purchase shares of common
stock of the Company (the "COMPANY COMMON STOCK");
WHEREAS, the Company merged with and into a subsidiary of Foilmark on April
23, 1999 and, in connection therewith, the Option would become exercisable in
accordance with the terms of the vesting schedule set forth in such Option
Agreement for 83,752 shares of Common Stock, par value $.01 per share, of
Foilmark (the "FOILMARK COMMON STOCK");
WHEREAS, the Company, Foilmark and the Option Holder have agreed to enter
into this Agreement to accelerate the vesting of the Option and to terminate the
Option Agreement and cancel the Option;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. ACCELERATION AND TERMINATION. Immediately prior to the Effective Time
of the Merger (as each term is defined in that certain Agreement and Plan of
Merger dated as of April 10, 2001 by and among Illinois Tool Works Inc., Xxxxxx
Acquisition Inc. and Foilmark (the "MERGER AGREEMENT")), the Option shall
accelerate and terminate in exchange for a cash payment by Foilmark of an amount
equal to (i) the excess, if any, of (A) the price per share of Foilmark Common
Stock to be paid pursuant to the tender offer to purchase all of the issued and
outstanding shares of Foilmark Common Stock (the "OFFER") over (B) the exercise
price per share of Foilmark Common Stock subject to the Option, multiplied by
(ii) that number of shares of Foilmark Common Stock for which the Option shall
not theretofore have been exercised. In the event that the Merger Agreement is
terminated for any reason or the transactions contemplated thereunder are not
consummated, this Agreement shall be null and void and of no further force and
effect without any further action on the part of any of the parties hereto.
2. REPRESENTATION AND WARRANTIES. The Option Holder hereby represents and
warrants that: (i) he is the owner, free and clear of any and all pledges,
encumbrances, claims or rights of third parties, of the Option; and (ii) he has
full power and authority to enter into this Agreement.
3. RELEASE. The Option Holder, on behalf of himself and his heirs,
successors and assigns, hereby releases and forever discharges each of the
Company and Foilmark and its respective successors and assigns, and the
respective stockholders, directors, officers, employees, and agents of each,
from any and all causes of action, liabilities of any kind, suits and/or claims
for damages of any type arising or which may have existed on or before the
present date, known
and unknown, suspected or not suspected, and any other claims, demands, causes
of actions, and liabilities of any kind relating to or with respect to any
right, event, matter, claim, occurrence or injury arising out of or in any way
associated with the Option or any shares of Company Common Stock or Foilmark
Common Stock that may be deemed to be underlying said Option.
4. FURTHER ASSURANCES. At any time and from time to time after the date
hereof, the parties hereto will execute and deliver all documents and do all
such further acts and things as may reasonably be required to carry out the
intent of the parties hereunder.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
6. COUNTERPARTS. This Agreement may be signed in counterparts, each of
which shall be considered an original and all of which together shall constitute
one agreement.
7. NOTICES. All notices under this Agreement shall be in writing and
deemed given upon receipt by the parties at the following addresses:
(a) If to Foilmark or the Company, to
Foilmark, Inc.
0 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Xx.
President and Chief Executive Officer
and
Xxxxxxxx, Xxxxx & Xxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
(b) If to the Option Holder, to
Xxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first written above.
FOILMARK, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive Officer
HOLOPAK TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive Officer
/s/ Xxxx X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx
ACCEPTED AND AGREED:
ILLINOIS TOOL WORKS INC.
By:
------------------------------
Name:
Title:
XXXXXX ACQUISITION INC.
By:
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Name:
Title:
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