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The undersigned, the GST Exempt Trust for the benefit of Xxxxx X.
Xxxxxxx under Article Third (E) of the Trust Under Agreement dated March 8,
1989, with Xxxxxxxx X. Xxxxxxx (the "Stockholder"), hereby acknowledges that,
concurrently with the execution and delivery of this agreement, Xxxxx X.
Xxxxxxx, certain other members of the management of Xxxxxxx Corporation (the
"Company") and Torque Acquisition Co., L.L.C. ("Acquisition Company") are
submitting a proposal (the "Proposal") to the Special Committee of the Board of
Directors of the Company (the "Special Committee"), the terms and conditions of
which are set forth in a draft merger agreement, to be entered into by and among
the Company, Acquisition Company and Merger Subsidiary (such draft merger
agreement and any definitive merger agreement entered into as a result of the
Proposal being hereafter referred to as the "Merger Agreement"), which is being
provided to the Special Committee in connection with the Proposal. Capitalized
terms used and not defined herein shall have the meanings set forth in the
Merger Agreement.
In consideration of the submission of the Proposal by Acquisition
Company and with the undersigned's knowledge that Acquisition Company is relying
on the term of this agreement in connection therewith, the Stockholder
irrevocably represents and agrees that:
1. except as noted on Schedule A attached hereto, the Stock holder
is the record and beneficial owner of, and has the sole right to vote and
dispose of, the number of outstanding shares of Company Common Stock (the
"Shares") set forth on Schedule A attached hereto;
2. the Stockholder is the record and beneficial owner of Company
Options to acquire the number of shares of Company Common Stock (the "Option
Shares") set forth on Schedule B attached hereto and, except for the Shares and
the Option Shares, the Stockholder does not, directly or indirectly,
beneficially own or have any option, warrant or other right to acquire any
securities of the Company;
3. the Stockholder will not tender any of the Shares or Option
Shares pursuant to the Offer;
4. the Stockholder will vote or cause to be voted all Shares, and
all Option Shares issued prior to the record date for voting on the Merger, (i)
in favor of the Merger and the approval and adoption of the Merger Agreement and
(ii) so long as the Merger Agreement is in effect, against any action or
agreement that
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would impede, interfere with, or prevent the Offer or the Merger at any meeting
(whether annual or special, and whether or not an adjourned or postponed
meeting) of the Company's stockholders;
5. pursuant to the terms of the Merger Agreement, (i) all Shares,
and all Option Shares issued prior to the Effective Time, will each be converted
in the Merger into the right to receive one Retained Share, and (ii) except if
and to the extent exercised prior to the Effective Time, each Company Option to
acquire shares of Company Common Stock set forth on Schedule B attached hereto
will, as of the Effective Time, continue to represent an option to acquire the
same number of shares of Surviving Corporation Common Stock at the same exercise
price per share, subject to extension by the Board of Directors of the Company;
and
6. the Stockholder will not, directly or indirectly, during the term
of this agreement, (i) sell, transfer, pledge, hypothecate, encumber, assign or
dispose of any Shares or Option Shares or the beneficial ownership thereof, or
offer to do any of the foregoing, (ii) except as contemplated pursuant to
Section 4 hereof and except for the Voting Trust Agreement to be entered into
upon consummation of the Merger, grant any proxy or power of attorney, deposit
any Shares into a voting trust or enter into a voting agreement, understanding
or arrangement with respect to the Shares, (iii) enter into any contract, option
or other arrangement or undertaking with respect to the direct or indirect sale,
assignment or other disposition of or transfer of any interest in or the voting
of any shares of Company Common Stock or any other securities of the Company or
(iv) exercise any Company Options to acquire shares of Company Common Stock.
The Stockholder agrees to the terms and provisions set forth in the
forms of Stockholders' Agreement and Voting Trust Agreement attached hereto and
agrees to enter into the Stockholders' Agreement concurrently with the execution
and delivery of the Merger Agreement and to enter into the Voting Trust
Agreement prior to or concurrently with the consummation of the Merger.
This agreement shall terminate if (i) the Merger Agreement has not
been executed within 30 days after the date hereof, (ii) the Offer shall expire
without Acquisition Company or the Company accepting for payment or purchasing
any shares of Company Common Stock pursuant to the Offer, (iii) the Merger
Agreement is terminated in accordance with its terms or (iv) the Merger is
consummated.
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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. Nothing in this
agreement shall confer any rights upon any party other than the parties hereto.
Any party hereto may waive compliance by the other party 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.
All notices and other communications hereunder must be in writing
and are to be given (and shall be deemed to have been duly given upon receipt)
by delivery in person, by telecopy, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to Acquisition Company:
c/o Vestar Capital Partners IV, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
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If to the Company:
Xxxxxxx Corporation
0000 Xxxxxxxxxx Xxxxxx
P.O. Box 22970
Rochester, New York 14692
Telecopy: (000) 000-0000
Attention: Secretary
Copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to the Stockholder:
GST Exempt Trust for the benefit of Xxxxx X. Xxxxxxx under Article
Third (E) of the Trust Under Agreement dated March 8, 1989, with
Xxxxxxxx X. Xxxxxxx
c/o Xxxxx X. Xxxxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
or to such other address as any party hereto may have previously furnished to
the other party hereto in writing in accordance herewith.
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.
Each of the parties hereto acknowledges and agrees that in the event
of any breach of this agreement, the non-breaching party would be irreparably
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harmed and could not be made whole by monetary damages. It is accordingly agreed
that the parties hereto (i) shall waive, in any action for specific performance,
the defense of adequacy of a remedy at law and (ii) 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.
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 hereto 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 the other party
hereto with its obligations hereunder, and any custom or practice of the parties
hereto 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.
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.
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This agreement may be signed in counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
The GST Exempt Trust for the benefit of Xxxxx X.
Xxxxxxx under Article Third (E) of the Trust Under
Agreement dated March 8, 1989, with Xxxxxxxx X.
Xxxxxxx
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Successor Trustee
Accepted and Agreed
this 29th day of November, 1999:
TORQUE ACQUISITION CO., L.L.C.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: President
XXXXXXX CORPORATION
By: /s/ Xxxxx X Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief
Executive Officer
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SCHEDULE A
Total number of Shares beneficially owned by the GST Exempt Trust for the
benefit of Xxxxx X. Xxxxxxx under Article Third (E) of the Trust Under Agreement
dated March 8, 1989, with Xxxxxxxx X. Xxxxxxx: 22,756
Total number of Shares over which the GST Exempt Trust for the benefit of Xxxxx
X. Xxxxxxx under Article Third (E) of the Trust Under Agreement dated March 8,
1989, with Xxxxxxxx X. Xxxxxxx has sole voting and disposition rights: 22,756
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SCHEDULE B
None
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