EXECUTION COPY
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of July 8, 2007, is
made by and among the parties set forth on Schedule A attached hereto (each, a
"Principal Stockholder" and collectively, the "Principal Stockholders"), SEQUA
CORPORATION, a Delaware corporation (the "Company"), BLUE XXX ACQUISITION
CORPORATION, a Delaware corporation ("Parent"), and BLUE XXX MERGER CORPORATION,
a Delaware corporation and wholly-owned subsidiary of Parent ("Merger Co").
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, the Company, Parent and Merger Co are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as amended or
supplemented from time to time in accordance with the terms thereof, the "Merger
Agreement"), providing for the merger of Merger Co with and into the Company
with the Company as the surviving corporation (the "Merger"), upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Principal Stockholder
beneficially owns the number of shares of (i) class A common stock, no par
value, of the Company (the "Class A Common Stock") and (ii) class B common
stock, no par value, of the Company (the "Class B Common Stock" and collectively
with the Class A Common Stock, the "Common Stock") set forth opposite such
Principal Stockholder's name on Schedule A attached hereto; and
WHEREAS, as a condition to the willingness of Parent and Merger Co to
enter into the Merger Agreement, each of Parent and Merger Co has required that
each Principal Stockholder agrees, and in order to induce Parent and Merger Co
to enter into the Merger Agreement, each Principal Stockholder has agreed, to
enter into this Agreement with respect to (a) all the shares of Common Stock now
beneficially owned by, and all the shares of Common Stock or other voting
securities of the Company which may hereafter be acquired by, or on behalf of,
or issued to such Principal Stockholder (collectively, the "Shares") and (b)
certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I.
VOTING AGREEMENT
Section 1.1 Voting Agreement. Each Principal Stockholder hereby agrees
that during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval (including
by written consent) is sought, such Principal Stockholder shall (i) when a
meeting is held, appear at such meeting or otherwise cause the Shares to be
counted as present thereat for the purpose of establishing a quorum and (ii)
vote (or cause to be voted) the Shares: (a) in favor of the Merger, the Merger
Agreement and the transactions contemplated by the Merger Agreement if a vote,
consent or other approval (including by written
consent) with respect to any of the foregoing is sought and (b) against any (x)
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 Company or
any other Acquisition Proposal, (y) amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
would in any manner reasonably be expected to impede, delay, frustrate, prevent
or nullify the Merger, the Merger Agreement or (z) any other matter on which the
stockholders are entitled to vote that, to the actual knowledge of such
Principal Stockholder, would result in a breach in any material respect of any
representation, warranty, covenant or agreement of the Company under the Merger
Agreement or change in any manner the voting rights of any class of the Common
Stock.
Section 1.2 Proxy. EACH PRINCIPAL STOCKHOLDER HEREBY GRANTS TO, AND
APPOINTS, PARENT, THE PRESIDENT OF PARENT AND THE SECRETARY OF PARENT, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF PARENT, AND ANY OTHER DESIGNEE OF PARENT,
EACH OF THEM INDIVIDUALLY, SUCH PRINCIPAL STOCKHOLDER'S PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES, OR TO
GRANT APPROVAL IN RESPECT OF THE SHARES, SOLELY WITH RESPECT TO THE MATTERS SET
FORTH IN, AND IN THE MANNER CONTEMPLATED BY, SECTION 1.1. THIS PROXY IS
IRREVOCABLE (SUBJECT TO THE PENULTIMATE SENTENCE OF THIS SECTION 1.2) AND
COUPLED WITH AN INTEREST AND EACH PRINCIPAL STOCKHOLDER AGREES TO TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY. THE PROXY GRANTED BY EACH PRINCIPAL
STOCKHOLDER SHALL BE AUTOMATICALLY REVOKED UPON TERMINATION OF THIS AGREEMENT IN
ACCORDANCE WITH ITS TERMS. EACH PRINCIPAL STOCKHOLDER HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY SUCH PRINCIPAL STOCKHOLDER WITH RESPECT TO THE SHARES.
Section 1.3 Acknowledgment. Each Principal Stockholder hereby
acknowledges receipt and review of a copy of the Merger Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDERS
Each Principal Stockholder, severally and not jointly, hereby
represents and warrants to Parent as follows:
Section 2.1 Authority Relative To This Agreement. Such Principal
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform his, her or its obligations hereunder and to consummate
the transactions to be consummated by him, her or it as contemplated hereby.
This Agreement has been duly and validly executed and delivered by such
Principal Stockholder.
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Section 2.2 No Conflict.
(a) The execution and delivery of this Agreement by such Principal
Stockholder do not, and the performance of his, her or its obligations under
this Agreement by such Principal Stockholder and the consummation of the
transactions to be consummated by him, her or it as contemplated hereby shall
not, (i) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to such Principal Stockholder or by which the Shares held by
such Principal Stockholder as of the date hereof are bound or affected or (ii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the Shares held by such
Principal Stockholder as of the date hereof pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Principal Stockholder is a party or
by which such Principal Stockholder or the Shares held by such Principal
Stockholder as of the date hereof are bound or affected.
(b) The execution and delivery of this Agreement by such Principal
Stockholder do not, and the performance of his, her or its obligations under
this Agreement shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any court or arbitrator or any
governmental entity, agency or official, except for applicable requirements, if
any, of the Securities and Exchange Act of 1934, as amended, and the applicable
requirements of state securities or "blue sky" laws and state takeover laws, and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by such Principal Stockholder of his, her or its obligations
under this Agreement.
Section 2.3 Ownership Of Shares. As of the date hereof, such Principal
Stockholder is the record or beneficial owner of the Shares set forth opposite
such Principal Stockholder's name on Schedule A hereto, free and clear of all
pledges, liens, proxies, claims, charges, security interests, preemptive rights,
voting trusts, voting agreements, options, rights of first offer or refusal and
any other encumbrances or arrangements whatsoever with respect to the ownership,
transfer or other voting of such Shares (collectively, "Liens"). There are no
outstanding options, warrants or rights to purchase or acquire, or agreements or
arrangements relating to the voting of, any Shares held by such Principal
Stockholder as of the date hereof, and such Principal Stockholder has the sole
authority to direct the voting of such Shares in accordance with the provisions
of this Agreement and the sole power of disposition with respect to such Shares,
with no restrictions, subject to applicable federal securities laws on his, her
or its rights of disposition pertaining thereto (other than Liens or
restrictions created by this Agreement). As of the date hereof, such Principal
Stockholder does not own beneficially or of record any equity securities of the
Company other than the Shares and other equity securities set forth opposite
such Principal Stockholder's name on Schedule A hereto. Such Principal
Stockholder has not appointed or granted any proxy that is still in effect with
respect to any Shares held by such Principal Stockholder.
Section 2.4 No Finder's Fee. 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
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commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Principal Stockholder.
Section 2.5 Reliance By The Buyers. Such Principal Stockholder
understands and acknowledges that Parent and Merger Co are entering into the
Merger Agreement in reliance upon such Principal Stockholder's execution and
delivery of this Agreement.
Section 2.6 No Other Representations or Warranties. Except for the
representations and warranties expressly contained in this Article II, such
Principal Shareholder makes no express or implied representation or warranty
with respect to such Principal Shareholder, the Shares or any other matters.
ARTICLE III.
COVENANTS OF THE PRINCIPAL STOCKHOLDERS
Section 3.1 No Inconsistent Agreement. Each Principal Stockholder
hereby covenants and agrees that such Principal Stockholder (i) shall not enter
into any agreement that would restrict, limit or interfere with the performance
of such Principal Stockholder's obligations hereunder and (ii) shall not
knowingly take any action that would reasonably be expected to make any of his,
her or its representations or warranties contained herein untrue or incorrect or
have the effect of preventing or disabling him, her or it from performing his,
her or its obligations under this Agreement, in each case except as permitted or
contemplated by this Agreement.
Section 3.2 No Transfer. Other than pursuant to the terms of this
Agreement or the Merger Agreement, without the prior written consent of Parent
or as otherwise provided in this Agreement, during the term of this Agreement,
each Principal Stockholder hereby agrees to not, directly or indirectly, (a)
grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Shares or (b) sell, assign,
transfer, encumber or otherwise dispose of (including by merger, consolidation
or otherwise by operation of law), or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect assignment,
transfer, encumbrance or other disposition of (including by merger,
consolidation or otherwise by operation of law), any Shares, provided that any
Principal Stockholder may transfer any or all Shares held by such Principal
Stockholder to any Person who has agreed to be bound by the terms of this
Agreement as a Principal Stockholder and who delivers to the Company, Parent and
Merger Co a duly executed copy of this Agreement (and in such event the
transferring Principal Stockholder shall be relieved of his, her or its
obligations under this Agreement with respect to the Shares so transferred).
Each Principal Stockholder agrees, while this Agreement is in effect, to
promptly notify Parent of the number of any Shares acquired by such Principal
Stockholder, if any, after the date hereof.
Section 3.3 No Solicitation. Each Principal Stockholder hereby
acknowledges that he, she or it is aware of the covenants of the Company
contained in Section 6.04 of the Merger Agreement and hereby agrees that he, she
or it shall, and shall cause his, her or its representatives to, after the
Solicitation Period End Date, promptly cease any discussions or negotiations
with any parties that may be ongoing as of such date with respect to an
Acquisition Proposal. Each Principal Stockholder hereby further agrees that he,
she or it shall not, nor shall
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he, she or it permit any of his, her or its representatives to, directly or
indirectly, (i) solicit, initiate or knowingly encourage (including by way of
furnishing non-public information or providing access to the Company's or such
Principal Stockholder's properties, books, records or personnel, as applicable)
any inquiries regarding, or the making of any proposal or offer that
constitutes, or could reasonably be expected to lead to, an Acquisition Proposal
or (ii) have any discussions or participate in any negotiations regarding an
Acquisition Proposal, or execute or enter into any agreement, understanding or
arrangement with respect to an Acquisition Proposal, except, in each case, to
the extent that the Company is permitted to engage in such solicitation,
initiation, encouragement, discussions or negotiations pursuant to Section 6.04
of the Merger Agreement and except that (x) in connection with a termination of
the Merger Agreement in accordance with its terms, each Principal Stockholder
shall be entitled to enter into a voting agreement with the Person making an
Acquisition Proposal and (y) nothing contained in this Section 3.3(a) shall
prohibit any Principal Stockholder from responding to an unsolicited proposal or
inquiry solely by advising the Person making such proposal or inquiry of the
terms of this Section 3.3(a); provided, that, to the extent that the Company
informs such Principal Stockholder that the Board of Directors of the Company or
the Transaction Committee has determined that the Company is entitled to engage
in any such solicitation, initiation, encouragement, discussion or negotiation
pursuant to Section 6.04 of the Merger Agreement, such Principal Stockholder may
conclusively rely on such determination and shall not be held liable for breach
under this Agreement if such determination is later determined to be incorrect
or inconsistent with the terms of the Merger Agreement. Each Principal
Stockholder shall advise Parent in writing of the receipt by such Principal
Stockholder or any of his, her or its representatives of any Acquisition
Proposal (in each case within 48 hours of receipt thereof), specifying the
material terms and conditions thereof. Each Principal Stockholder shall promptly
notify Parent in writing of any modifications to the financial or other material
terms of such Acquisition Proposal not previously provided to Parent.
Section 3.4 Waiver Of Appraisal Rights. Each Principal Stockholder
hereby irrevocably and unconditionally waives, and agrees to prevent the
exercise of, any rights of appraisal, any dissenters' rights and any similar
rights relating to the Merger or any related transaction that such Principal
Stockholder may directly or indirectly have by virtue of the ownership of any
Shares.
Section 3.5 No Restraint On Officer Or Director Action; Etc. Each
Principal Shareholder has executed this Agreement solely in his, her or its
capacity as the record or beneficial owner, as applicable, of the Shares. Each
of the executors under the will of Xxxxxx X. Xxxxxxxxx and trustees of any trust
that is a Principal Stockholder has executed this Agreement solely in his or her
capacity as executor or trustee, as applicable, and under no circumstances shall
any such executor or trustee be personally liable for any obligations of any of
the Principal Stockholders hereunder. Notwithstanding any provision to the
contrary in this Agreement, each of Parent and Merger Co hereby acknowledges and
agrees that no provision in this Agreement shall in any way (a) limit or
restrict any Principal Stockholder, or any affiliate, employee, shareholder,
member, partner, agent, representative, successor or designee of any Principal
Stockholder, in such Person's capacity, if any, as a director or officer of the
Company or any subsidiary thereof (including any vote that such Person may take
as a director of the Company on any matter presented to the Board of Directors
of the Company or the Transaction Committee), and no action taken by such Person
in such other capacity shall be deemed to
5
constitute a breach of any provision of this Agreement, or (b) limit or affect
the Company's rights in connection with the Merger Agreement.
Section 3.6 Enforceability. Each Principal Stockholder hereby
covenants and agrees that such Principal Stockholder shall not object to or take
any action to challenge the validity or enforceability of this Agreement or
raise the validity or enforceability of this Agreement as a defense in any
action brought by Parent.
Section 3.7 Obligations Several And Not Joint. The obligations of each
Principal Stockholder hereunder shall be several and not joint, and no Principal
Stockholder shall be liable for any breach of the terms of this Agreement by any
other Principal Stockholder.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Principal
Stockholder and Parent that the Company has all necessary power and authority to
execute and deliver this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company and, assuming the due authorization,
execution and delivery by the other parties hereto, is a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Board of Directors of the
Company has taken all necessary action to ensure that the restrictions on
business combinations contained in Section 203 of the General Corporation Law of
the State of Delaware will not apply to this Agreement or the transactions
contemplated by this Agreement. The execution and delivery of this Agreement do
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, the articles of incorporation or by-laws of the Company, 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 Company or to the Company's property or assets.
ARTICLE V.
MISCELLANEOUS
Section 5.1 Termination. This Agreement and all of its provisions
shall terminate (i) automatically, without any notice of other action by any
Person, upon the earliest of (A) the Effective Time or (B) the termination of
the Merger Agreement in accordance with its terms, or (ii) written notice of
termination of this Agreement by Parent to the Principal Stockholders (such date
of termination, the "Termination Date"). Nothing in this Section 5.1 shall be
deemed to release any party from any liability for any breach by such party of
the terms and provisions of this Agreement prior to the Termination Date.
6
Section 5.2 No Survival of Representations And Warranties. The
representations and warranties of the parties contained herein shall expire, and
shall be terminated and extinguished, upon termination of this Agreement
pursuant to Section 5.1.
Section 5.3 Amendment Of Merger Agreement. The obligations of the
Principal Stockholders under this Agreement shall terminate if the Merger
Agreement is amended or otherwise modified after the date hereof without the
prior written consent of the Principal Stockholders in a manner that reduces or
changes the form of Merger Consideration or otherwise adversely affects any of
the Principal Stockholders.
Section 5.4 Fees And Expenses. Except as otherwise provided herein or
as set forth in the Merger Agreement, all costs and expenses incurred in
connection with the transactions contemplated by this Agreement shall be paid by
the party incurring such costs and expenses.
Section 5.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (a) on the date
of delivery if delivered personally, (b) on the first business day following the
date of dispatch if delivered by a nationally recognized next-day courier
service, (c) on the fifth business day following the date of mailing if
delivered by registered or certified mail (postage prepaid, return receipt
requested) or (d) if sent by facsimile transmission, when transmitted and
receipt is confirmed. All notices hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 5.5):
if to Parent or Merger Co:
Blue Xxx Acquisition Corporation
c/o:
The Carlyle Group
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Xxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to the Company:
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Sequa Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, III, Senior Vice President, Legal
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: W. Xxxxxx Xxxxx, Xxxxx X. Xxxxxx, Xxxxxxxx X. Xxxx
Facsimile: (000) 000-0000
if to any Principal Stockholder:
c/o Xxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
with copies to:
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and
Xxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Section 5.6 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 is 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 hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as
8
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
Section 5.7 Entire Agreement; Assignment. This Agreement and the
Merger Agreement constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof and supersede all prior
agreements and undertakings, both written and oral, among the parties hereto, or
any of them, with respect to the subject matter hereof and thereof. This
Agreement shall not be assigned (whether pursuant to a merger, by operation of
law or otherwise), except that Parent or Merger Co may assign all or any of
their rights and obligations hereunder to an Affiliate, provided, however, that
no such assignment shall relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations.
Section 5.8 Amendment. This Agreement may be amended by the parties
hereto by action taken by or on behalf of the respective Boards of Directors of
the parties (in the case of the Company, Parent and Merger Co) and the Principal
Stockholders at any time prior to the Effective Time. This Agreement may not be
amended except by an instrument in writing signed by each of the parties hereto.
Section 5.9 Waiver. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any inaccuracy in the representations
and warranties of any other party contained herein or in any document delivered
pursuant hereto or (c) waive compliance with any agreement of any other party or
any condition to its own obligations contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by the
party or parties to be bound thereby. The failure of any party to assert any of
its rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
Section 5.10 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section 5.11 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without giving
effect to the choice of law principles therein).
Section 5.12 Specific Performance; Submission To Jurisdiction. 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 Court of Chancery or other courts of the State of Delaware, this
being in addition to any other remedy to which such party is entitled at law or
in equity. In addition, each of the parties hereto (a) consents to submit itself
to the personal jurisdiction of the Court of Chancery or other courts of the
State of Delaware in the event any dispute arises out of this Agreement or any
of the transactions contemplated by this Agreement, (b) agrees that it will not
attempt to deny or
9
defeat such personal jurisdiction by motion or other request for leave from such
court, (c) agrees that it will not bring any action relating to this Agreement
or any of the transactions contemplated by this Agreement in any court other
than the Court of Chancery or other courts of the State of Delaware and (d) to
the fullest extent permitted by Law, consents to service being made through the
notice procedures set forth in Section 5.5. Each party hereto hereby agrees
that, to the fullest extent permitted by Law, service of any process, summons,
notice or document by U.S. registered mail to the respective addresses set forth
in Section 5.5 shall be effective service of process for any suit or proceeding
in connection with this Agreement or the transactions contemplated hereby.
Section 5.13 Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable Law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 5.13.
Section 5.14 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 5.15 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section 5.16 Further Assurances. From time to time, at the request of
another party and without further consideration, each party hereto shall take
such reasonable further action as may reasonably be necessary or desirable to
consummate and make effective the transactions contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Principal Stockholders, the Company, Parent
and Merger Co have caused this Agreement to be duly executed on the date hereof.
BLUE XXX ACQUISITION CORPORATION
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BLUE XXX MERGER CORPORATION
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
SEQUA CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice Chairman and Chief
Executive Officer
[SIGNATURES OF PRINCIPAL STOCKHOLDERS BEGIN ON THE FOLLOWING PAGE]
PRINCIPAL STOCKHOLDERS:
XXXXXXXX XXXXXXXXX, XXXX
XXXXXXXXX, XXXX XXXXXXXXX
AND XXXXXX XXXXXXXX, AS
EXECUTORS U/W XXXXXX X.
XXXXXXXXX
/s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxxx Xxxxxxxxx, Executor
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, Executor
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, Executor
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx, Executor
FORFED CORPORATION
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
FIFTY BROAD STREET, INC.
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
XXXXXXXX CORPORATION
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
00 XXX XXXXXX, INC.
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
YOUANDI CORP.
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
XXXX XXXXXXXXX, XXXX
XXXXXXXXX AND XXXXXX
XXXXXXXX AS TRUSTEES U/I DTD
JULY 13, 2005
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, Trustee
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, Trustee
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx, Trustee
XXXX XXXXXXXXX, XXXX
XXXXXXXXX AND XXXXXX
XXXXXXXX AS TRUSTEES U/I DTD
JULY 13, 2005
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, Trustee
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, Trustee
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx, Trustee
XXXXXX AND XXXXXXXX XXXXXXXXX
FOUNDATION, INC.
By /s/ Xxxx Xxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
Schedule A
Principal Stockholders
Number of Shares of Number of Shares of
Name of Holder Class A Common Stock Class B Common Stock
------------------------------------------ -------------------- --------------------
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxx
Xxxxxxxxx and Xxxxxx Xxxxxxxx,
as Executors u/w Xxxxxx X. Xxxxxxxxx(1) 49,690 198,526
Forfed Corporation 1,743,143 1,379,843
Fifty Broad Street, Inc. 14,297 167,878
Xxxxxxxx Corporation -- 68,524
00 Xxx Xxxxxx, Inc. 45,000 45,000
Youandi Corp. 30,000 30,000
Xxxx Xxxxxxxxx, Xxxx Xxxxxxxxx and Xxxxxx
Xxxxxxxx as Trustees u/i dtd July 13, 2005 -- 83,234
Xxxx Xxxxxxxxx, Xxxx Xxxxxxxxx and Xxxxxx
Xxxxxxxx as Trustees u/i dtd July 13, 2005 -- 38,154
Xxxxxx and Xxxxxxxx Xxxxxxxxx
Foundation, Inc. 110,415 --
----------
(1) The Executors also beneficially own (i) 2,048 shares of Common Stock held
in the account of Xxxxxx X. Xxxxxxxxx in the Sequa 401(k) Plan and (ii)
Company Stock Options to purchase in the aggregate 35,000 shares of Common
Stock.
