EXHIBIT D(3)
================================================================================
STOCK VOTING AND NON-TENDER AGREEMENT
BY AND AMONG
PINE HOLDINGS, INC.
PINE ACQUISITION CORP.
AND
THE INDIVIDUALS NAMED HEREIN
Dated as of March 29, 2000
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
1. Definitions..............................................................1
2. Non-Tender of Shares.....................................................1
3. Provisions Concerning the Securities.....................................2
(a) Agreement to Vote the Securities....................................2
(b) Grant of Proxy......................................................2
(c) Other Proxies Revoked...............................................2
4. Representations and Warranties of each Stockholder.......................2
(a) Power, etc..........................................................3
(b) Ownership of Securities.............................................3
(c) No Conflicts........................................................3
(d) No Finder's Fees....................................................3
(e) No Encumbrances.....................................................3
(f) Reliance by Acquiror................................................4
5. Additional Covenants of each Stockholder.................................4
(a) No Solicitation.....................................................4
(b) Restriction on Transfer, Proxies and Non-Interference...............4
(c) Waiver of Appraisal Rights..........................................5
(d) Stop Transfer; Changes in Subject Shares............................5
(e) Cooperation.........................................................5
(f) Releases............................................................5
6. Fiduciary Duties.........................................................5
7. Miscellaneous............................................................5
(a) Further Assurances..................................................5
(b) Notices.............................................................5
(c) Interpretation......................................................6
(d) Counterparts........................................................6
(e) Entire Agreement; No Third-Party Beneficiaries......................6
(f) Governing Law.......................................................7
(g) Assignment..........................................................7
(h) Severability........................................................7
(i) Enforcement of this Agreement.......................................7
8. Termination..............................................................7
STOCK VOTING AND NON-TENDER AGREEMENT
STOCK VOTING AND NON-TENDER AGREEMENT (this "Agreement") dated as of
March 29, 2000, among Pine Holdings, Inc., a Virginia corporation ("Parent"),
Pine Acquisition Corp., a Virginia corporation ("Acquiror") and the individuals
listed on Schedule I hereto (each a "Stockholder", and collectively, the
"Stockholders").
W I T N E S S E T H :
-------------------
WHEREAS, simultaneously with entering into this Agreement, Parent,
Acquiror and Pulaski Furniture Corporation, a Virginia corporation (the
"Company"), are entering into an Agreement and Plan of Merger (such agreement,
the "Merger Agreement"), pursuant to which Acquiror will be merged with and into
the Company (the "Merger");
WHEREAS, each Stockholder has agreed that such Stockholder shall not
tender any Shares beneficially owned by such Stockholder in the Offer as set
forth herein;
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such Stockholders'
name on Schedule I hereto; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Acquiror has required that each Stockholder enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement capitalized terms
-----------
used and not defined herein have the respective meanings ascribed to them in the
Merger Agreement.
2. Non-Tender of Shares.
--------------------
(a) Each Stockholder hereby agrees not to tender for acceptance by
Acquiror in the Offer any Shares owned by such Stockholder as of the date hereof
and any Shares hereafter acquired (all such Shares owned as of the date hereof
or hereinafter acquired, the "Securities").
(b) Each Stockholder hereby agrees to permit Parent and Acquiror to
publish and disclose in the Offer Documents and, if approval of the stockholders
of the Company is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) its identity and intent with
respect to the Securities and the nature of its commitments under this
Agreement.
3. Provisions Concerning the Securities.
------------------------------------
(a) Agreement to Vote the Securities. Each Stockholder, in its
--------------------------------
capacity as such, hereby agrees that during the period commencing on the date
hereof and continuing until the earlier of the Effective Time or the termination
of this Agreement (such period, the "Voting Period"), at any meeting of the
holders of any class or classes of the capital stock of the Company, however
called, or in connection with any written consent of the holders of any class or
classes of the capital stock of the Company, such Stockholder shall vote (or
cause to be voted) the Securities (x) in favor of the Merger, and the approval
of the terms of the Merger Agreement and each of the other transactions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof, (y) against any action, transaction or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or of such Stockholder under this Agreement, and (z) except as
otherwise agreed to in writing in advance by Acquiror, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
Subsidiaries; (ii) a sale, lease or transfer of a significant part of the assets
of the Company or any of its Subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
Subsidiaries; (iii) (A) any change in the Persons who constitute the board of
directors of the Company; (B) any change in the present capitalization of the
Company or any amendment of the Company's Articles of Incorporation or By-laws;
(C) any other material change in the Company's corporate structure or business;
or (D) any other action involving the Company or any of its Subsidiaries which
is intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or materially adversely affect the Merger and the transactions
contemplated by this Agreement or the Merger Agreement. Each Stockholder hereby
agrees that such Stockholder shall not enter into any agreement or understanding
with any Person the effect of which would be to violate the provisions and
agreements contained in this Agreement.
(b) Grant of Proxy. Each Stockholder hereby appoints Parent, Acquiror
--------------
and any designee of Parent or Acquiror, each of them individually, such
Stockholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the Voting Period with
respect to the Securities in accordance with paragraph (a) of this Section.
This proxy is given to secure the performance of the duties of each Stockholder
under this Agreement. Each Stockholder affirms that this proxy is coupled with
an interest and shall be irrevocable. Each Stockholder shall take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy.
(c) Other Proxies Revoked. Each Stockholder represents and warrants
---------------------
that any proxies heretofore given in respect of such Stockholder's Securities
are not irrevocable, and that all such proxies have been or are hereby revoked.
4. Representations and Warranties of each Stockholder. Each
--------------------------------------------------
Stockholder, severally and not jointly, hereby represents and warrants to
Acquiror as follows:
2
(a) Power, etc. Such Stockholder has all necessary power and
-----------
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming its due authorization,
execution and delivery by each other party hereto, constitutes a legal, valid
and binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms.
(b) Ownership of Securities. Such Stockholder is the record and
-----------------------
beneficial owner of the Securities listed beside such Stockholder's name on
Schedule I attached hereto. The Securities listed on Schedule I constitute all
of the shares of capital stock of the Company owned of record or beneficially by
such Stockholder as of the date hereof. All of such Securities are issued and
are outstanding and except as set forth on Schedule II attached hereto, such
Stockholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of capital stock of the Company. Such
Stockholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Sections 2 and 3 hereof, sole power of
disposition, sole power of conversion, sole power to demand appraisal rights and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of such Securities, with no limitations, qualifications
or restrictions on such rights, subject only to applicable laws, the Company's
Articles of Incorporation and the terms of this Agreement.
(c) No Conflicts. (i) No filing with, and no permit,
------------
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by such Stockholder
and the consummation by such Stockholder of the transactions contemplated hereby
and (ii) none of the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the provisions
hereof shall (A) conflict with or result in any breach of or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Stockholder is a
party or by which such Stockholder or any of such Stockholder's properties or
assets may be bound, or (B) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Stockholder or
any of such Stockholder's properties or assets.
(d) No Finder's Fees. Except as disclosed pursuant to the Merger
----------------
Agreement and except for the fees and expenses of Xxxx, Xxxxxxxxx and Xxxxxxxx,
no broker, investment banker, financial advisor or other person is entitled to
any broker's, finder's, financial advisor's or other similar fee or commission
in connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of such Stockholder.
(e) No Encumbrances. The Securities listed beside such Stockholder's
---------------
name on Schedule I attached hereto and the certificates representing such
Securities are now, and at all times during the term hereof will be, held by
such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all liens, claims, security interests, proxies,
3
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder.
(f) Reliance by Acquiror. Such Stockholder understands and
--------------------
acknowledges that Parent and Acquiror are entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
5. Additional Covenants of each Stockholder. Each Stockholder
----------------------------------------
covenants and agrees as follows:
(a) No Solicitation. Such Stockholder shall not, in its capacity as
---------------
such, directly or indirectly (i) solicit, facilitate, initiate or encourage any
inquiries or the making of any proposal with respect to an Acquisition
Transaction, (ii) enter into an agreement, arrangement or understanding with
respect to any Acquisition Transaction or enter into any agreement, arrangement
or understanding requiring such Stockholder to abandon, terminate or fail to
consummate this Agreement or any other transaction contemplated hereby or (iii)
negotiate, explore or otherwise engage in discussions, or furnish to any Person
(other than Parent or Acquiror) any information, with respect to any inquiries
or the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Acquisition Transaction. Such Stockholder should not, in its
capacity as such, (i) withdraw or modify or propose to withdraw or modify, in a
manner adverse to Parent or Acquiror, the approval or recommendation by such
Stockholder of the Offer, the Merger, the Merger Agreement or this Agreement or
(ii) endorse or recommend, or proposed to endorse or recommend, any Acquisition
Transaction. If such Stockholder receives any inquiry or proposal regarding any
Acquisition Transaction, such Stockholder shall promptly inform Acquiror of that
inquiry or proposal and the details thereof. Nothing in this paragraph 5(a)
shall prevent any Stockholder who is a director of the Company from taking any
action, solely in his capacity as a director of the Company, that a director of
the Company is permitted to take in accordance with Section 5.4 of the Merger
Agreement. Additionally, nothing in this paragraph 5(a) shall prevent any
Stockholder who is an officer of the Company from taking any action, solely in
his or her capacity as an officer of the Company, if requested or directed to do
so by the Board of Directors of the Company acting in a compliance with Section
5.4 of the Merger Agreement.
(b) Restriction on Transfer, Proxies and Non-Interference. Such
-----------------------------------------------------
Stockholder shall not (i) directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Securities or any Stock
Option or any interest therein; (ii) except as contemplated by this Agreement,
grant any proxies or powers of attorney, deposit any of the Securities into a
voting trust or enter into a voting agreement with respect to any of the
Securities or any Stock Option; (iii) exercise any Stock Option; or (iv) take
any action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing such Stockholder's obligations under
this Agreement.
4
(c) Waiver of Appraisal Rights. Such Stockholder hereby irrevocably
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(d) Stop Transfer; Changes in Subject Shares. Such Stockholder agrees
----------------------------------------
with, and covenants to, Acquiror that such Stockholder shall not request that
the Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of the Securities or any Stock
Option, unless such transfer is made in compliance with this Agreement. In the
event of a stock dividend or distribution, or any change in any class of capital
stock of the Company by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Securities" shall be deemed to refer to and include the Securities as well as
all such stock dividends and distributions and any shares into which or for
which any or all of the Securities may be changed or exchanged. Such
Stockholder shall be entitled to receive (free of any restrictions of this
Agreement) any cash dividend paid by the Company in respect of the Securities
during the term of this Agreement until the Effective Time.
(e) Cooperation. Such Stockholder, in the capacity as a stockholder,
-----------
shall cooperate fully with Parent, Acquiror and the Company in connection with
their respective efforts to fulfill the conditions to the Merger set forth in
Article VII of the Merger Agreement and the conditions to the Offer set forth in
Annex A to the Merger Agreement.
(f) Releases. Such Stockholder hereby fully, unconditionally and
--------
irrevocably releases, effective as of the Effective Time, any and all claims and
causes of action that such Stockholder has or may have against the Company or
any of its Subsidiaries or any present or former director, officer, employee or
agent of the Company or any of its Subsidiaries arising or resulting from or
relating to any act, omission, event or occurrence prior to the date hereof. If
requested by Parent, such Stockholder shall execute an additional release at the
Effective Time releasing such claims as may arise between the date hereof and
the Effective Time.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to
----------------
the contrary, the covenants and agreements set forth herein shall not prevent
any Stockholder serving on the Company's Board of Directors from taking any
action, subject to the applicable provisions of the Merger Agreement, while
acting in the capacity of a director of the Company.
7. Miscellaneous.
-------------
(a) Further Assurances. From time to time, at Acquiror's request and
------------------
without further consideration, each Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(b) Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed given if delivered personally, mailed,
certified or registered mail with postage prepaid, sent by overnight courier or
telecopied to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
5
(i) if to Parent or Acquiror, to
c/o Quad-C Management, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
with copies to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
(ii) if to the Stockholders, to the address set forth beside each
Stockholder's name listed on Schedule I hereto
with a copy to:
McGuire, Woods, Battle & Xxxxxx LLP
World Trade Center
Suite 9000
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(c) Interpretation. When a reference is made in this Agreement to a
--------------
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(d) Counterparts. This Agreement may be executed in counterparts,
-------------
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement,
----------------------------------------------
including the documents and instruments referred to herein (a) 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 (b) is not intended to confer upon any person or entity other than the
parties any rights or remedies hereunder.
6
(f) Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the Commonwealth of Virginia, without
regard to the conflict of laws rules thereof.
(g) 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 Parent and
Acquiror may assign, in their sole discretion, any of or all their rights,
interests and obligations under this Agreement to any direct or indirect wholly
owned subsidiary of Parent. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
(h) Severability. If any term or other provision of this Agreement
------------
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in a mutually acceptable manner in order that
the transactions be consummated as originally contemplated to the fullest extent
possible.
(i) Enforcement of this Agreement. 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 hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
8. Termination. This Agreement shall terminate, and neither Acquiror
-----------
nor any Stockholder shall have any rights or obligations hereunder and this
Agreement shall become null and void and have no effect upon the termination of
the Merger Agreement in accordance with its terms, except nothing in this
Section 8 shall relieve any party of liability for breach of this Agreement.
7
IN WITNESS WHEREOF, Parent, Acquiror and each Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
PINE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
PINE ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxxxxx
--------------------------------
Xxx X. Xxxxxxxx
/s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
SCHEDULE I
----------
Amount of Shares
Name of Stockholder Beneficially Owned Notice Address
---------------------- ---------------------- -----------------------
Xxxxxxxx X. Xxxxxxxx 36,812 Xxxxx 0, Xxx 000
Xxxxxx, XX 00000
Xxx X. Xxxxxxxx 31,171 X.X. Xxx 0000
Xxxxxxx, XX 00000
Xxxx Xxxxxx 1,700 000 Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxxx Xxxxxx 2,500 0000 Xxxxxxxxx Xx.
Xxxx Xxxx, XX 00000
Xxxx X. Xxxxxxx 2,778 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxx 45,263 X.X. Xxx 000
Xxxxxxx, XX 00000
Xxxx X. Xxxxxxx 2,510 000 Xxxxxxxxx Xxxxx
Xxxxx, XX 00000
Xxxxx X. Xxxxx 27,384 0000 Xxxxxxxx Xxxx.
Xxxxxx, XX 00000
Xxxx X. Xxxxxxx 63,483 0000 Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 2,947 000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxxxx, XX 00000
SCHEDULE II
-----------
Amount of options, warrants or other rights to
Name of Stockholder acquire Shares
--------------------------------- --------------------------------------------------
Xxxxxxxx X. Xxxxxxxx 2,500 Stock Options
Xxx X. Xxxxxxxx 2,500 Stock Options
Xxxx Xxxxxx 0
Xxxxx Xxxxxx 0
Xxxx X. Xxxxxxx 0
Xxxxx X. Xxxxx 5,000 Stock Options
Xxxx X. Xxxxxxx 0
Xxxxx X. Xxxxx 0
Xxxx X. Xxxxxxx 5,000 Stock Options
Xxxxxxx X. Xxxxxxx 0
