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AGREEMENT TO SUPPORT THE TRANSACTION
This Agreement (the "AGREEMENT") is made and entered into as of the
6th day of December, 1996 in favor of CENTRAL PARKING CORPORATION, a Tennessee
corporation ("PURCHASER"), and CENTRAL PARKING SYSTEM -- EMPIRE STATE, INC., a
New York corporation and wholly-owned indirect subsidiary of Purchaser ("MERGER
SUB"), by Xxxxxx Xxxxxxx, Xxx. Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx,
Xxx. Xxxxx Xxxxxxx, Xxxxx Xxxxxxx as custodian and trustee for his minor
children, Xxxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxx
Xxxxxxx as custodian for his minor children (collectively, the "SIGNIFICANT
SHAREHOLDERS").
W I T N E S S E T H:
WHEREAS, effective simultaneously herewith Purchaser, Merger Sub and
Square Industries, Inc. ( the "Company") have entered into an Agreement and
Plan of Merger dated as of the date hereof (the "Plan of Merger") pursuant to
which the Merger Sub will offer to purchase all of the outstanding common stock
of the Company; and
WHEREAS, under the conditions set forth herein the Significant
Shareholders have agreed to tender all of their shares of common stock, par
value $.01 of the Company (the "Company Common Stock") to Merger Sub in the
Offer.
NOW, THEREFORE, in order to induce Purchaser and Merger Sub to enter
into the Plan of Merger and in consideration of the foregoing and the covenants
and agreements set forth herein, and good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
ARTICLE 1.
1.1 Agreement to Tender Shares. The Significant Shareholders
agree to tender all of their Shares (including any Shares owned by foundations
or trusts over which the Shareholder has the power of disposition) of Company
Common Stock to Merger Sub in the Offer prior to the expiration of the Offer
and to enter into agreements to cash out all of their outstanding options and
warrants as provided in Section 3.5 of the Plan of Merger. In the event the
Board of Directors of the Company shall conclude, in good faith, in compliance
with Section 5.2 of the Plan of Merger, not to recommend, or to withdraw or
modify its recommendation of, the Offer or the Merger to the shareholders of
the Company in a situation which would permit the termination of the Plan of
Merger pursuant to Sections 7.3(ii) or 7.4(ii) of the Plan of Merger, then the
Significant Shareholders shall no longer be required to tender their Shares in
the Offer pursuant to this Section 1.1 and may withdraw any Shares tendered.
1.2 Support of Merger by Significant Shareholders. The Significant
Shareholders
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agree in their capacity as shareholders to support the Offer and the Merger, to
use their reasonable best efforts to recommend the Offer to the Company's other
shareholders, to seek approval of the Merger, and to take all actions and
execute all documents reasonably requested by Purchaser to carry out the
foregoing matters, the Offer and the Plan of Merger, including, but not limited
to the execution of written consent actions. In the event the Board of
Directors of the Company, including the Significant Shareholders in their
capacity as directors, shall conclude, in good faith, in compliance with
Section 5.2 of the Plan of Merger, not to recommend, or to withdraw or modify
its recommendation of, the Offer or the Merger to the shareholders of the
Company in a situation which would permit the termination of the Plan of Merger
pursuant to Sections 7.3(ii) or 7.4(ii) of the Plan of Merger, then the
Significant Shareholders shall no longer be required to support the Offer and
the Merger as provided in this Section 1.2.
1.3 Corporation Not Liable. From and after the Effective Date,
Significant Shareholders will not seek indemnification, contribution, recourse
or redress of any kind against Company or any of its subsidiaries in connection
with any indemnification or similar obligations pursuant to corporate law, or
contractual rights with respect to:
(a) in their positions and capacities as Company
shareholders with respect to any claims they may have as Company shareholders
against the Company and/or any officers or directors or employees of Company
and its subsidiaries with respect to the actions of Company and its
subsidiaries and its officers and directors and employees in connection with
negotiating and approving the Merger and related transactions; and
(b) any transaction with the Company (or any of its
subsidiaries) in which such person has a direct or indirect conflict of
interest.
provided, however, this waiver shall not affect the right of such persons to
indemnification under the Merger Agreement.
Significant Shareholders agree, however, that in the event that they
receive any benefits as shareholders or former shareholders of the Company as a
result of actions taken by shareholders or former shareholders of the Company
against the Company or Purchaser based on wrongdoing of the Company or its
officers or directors (including, but not limited to, fiduciary duty breach)
relating to the Merger then all such benefits shall be promptly returned to the
Company or Purchaser (or the Company and Purchaser can fail to pay such
benefits to the Significant Shareholder).
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1.4 Confidentiality Covenant by Significant Shareholders. Other
than their support of the Offer and the Merger contemplated hereby, Significant
Shareholders covenant and agree that they will not divulge, furnish, publish or
use for any purpose whatsoever, including but not limited to for any of their
personal benefit or for the direct or indirect benefit of any other person or
business entity, whether or not for monetary gain, any information which is not
generally known in the real estate or parking industries, regarding the
Company, the Merger or the transactions contemplated by the Plan of Merger or
of Purchaser or its subsidiaries, including without limitation, any information
relating to any business methods, marketing and business plans, financial
contacts, financial data, systems, customers, suppliers, procedures,
techniques, research, knowledge or processes used or developed by Purchaser or
its subsidiaries, or any other proprietary or confidential information relating
to Purchaser or its subsidiaries and their respective businesses. Each will
inform any of its representatives who receive information relating to the
Merger (the "Representatives") to treat such information confidentially and not
to use it other than for the purpose of analyzing and evaluating the Merger.
Each shall cause it and its Representatives to not trade securities of
Purchaser or Company or tip other persons until there is a public announcement
of the Merger.
1.5 Bankruptcy, etc. Each of the Significant Shareholders
represents that as to himself or herself, he or she is not involved as a debtor
in any proceedings in any court under any bankruptcy law or any other
insolvency or debtor's relief law, whether federal or state, or for the
appointment of a trustee, receiver, liquidator, assignee, sequesteror or other
similar official for a Significant Shareholder or any of their property.
ARTICLE 2.
2.1 Definitions. All terms which are capitalized and not defined
herein shall have the same meanings as given them in the Plan of Merger.
2.2 Several Obligations. The obligations of each of the
Significant Shareholders under this agreement are several and not joint.
2.3 Assignment by Purchaser. Purchaser may freely assign this
Agreement to an affiliate; provided Purchaser remains liable for any of its
obligations hereunder, without the express written consent of Significant
Shareholder(s). No Significant Shareholder(s) may assign any right or
delegate any obligation under this Agreement without the prior written consent
of Purchaser, and any prohibitive assignment or delegation will be null and
void. Purchaser will not unreasonably withhold consent to a transfer of
Company Common Stock from a Significant Shareholder to this Agreement if the
transferee agrees in writing to be bound by the terms of this Agreement.
2.4. Notices. All notices, requests, consents and other
communications hereunder
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shall be in writing and shall be deemed to have been made when delivered or
mailed first-class postage prepaid by registered mail, return receipt
requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
(a) If to Purchaser, Merger Sub or Surviving Corporation,
x/x Xxxxxxx Xxxxxxx, Xxxxxxx Parking Corporation at 0000 00xx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000, Attention: Chairman, or at such other address
as may have been furnished to Significant Shareholders by Purchaser in writing;
or
(b) If to Significant Shareholder(s), at c/o Xxx
Xxxxxxxxxxx, Brock, Fensterstock, Xxxxxxxxxxx, XxXxxxxxx & Xxxx, LLC, 000 X.
00xx Xxxxxx, 00xx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as may
have been furnished to Purchaser by Significant Shareholder(s) in writing.
2..5. Controlling Law. This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of New York.
2.6. Headings. Any paragraph headings in this Agreement are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation.
2.7 Binding Nature. Subject to Paragraph 2.3, this Agreement
shall be binding upon and shall inure to the exclusive benefit of the parties
hereto and their respective heirs, legal representatives, successors and
assigns.
2.8. Validity of Provisions. If any provision of this Agreement
shall be held to be illegal, invalid or unenforceable under any applicable law,
then such contravention or invalidity shall not invalidate the entire
Agreement. Such provision shall be deemed to be automatically modified to the
extent necessary to render it legal, valid and enforceable, and if no such
modification shall render it legal, valid and enforceable, then this Agreement
shall be construed as if not containing the provision held to be invalid, and
the rights and obligations of the parties shall be construed and enforced
accordingly.
2.9. Waiver. Neither the failure nor any delay on the part of any
party hereto in exercising any rights, power or remedies hereunder shall
operate as a waiver thereof, or of any other right, power or remedy; nor shall
any single or partial exercise of any right, power or remedy preclude any
further or other exercise thereof, or the exercise of any other right, power or
remedy.
2.10. Entire Agreement. This Agreement, those documents expressly
referred to herein, and other documents of even date herewith embody the
complete Agreement and understanding among the parties with respect to the
subject matter hereof, and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
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2.11. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
ARTICLE 3.
3.1 Effectiveness. This agreement is effective upon the execution
of the Plan of Merger.
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IN WITNESS WHEREOF, this agreement has been duly executed as of the
date first written above.
SIGNIFICANT SHAREHOLDERS:
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Xxxxxx Xxxxxxx
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Xxx. Xxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Xxx. Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, as custodian and trustee
for his minor children
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Xxxxxx Xxxxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, as custodian for
his minor children
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