EXHIBIT (c)(3)
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of January 28,
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1998, by and among Xxxx Group, Inc., a Delaware corporation ("Parent"), Saffron
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Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Xxxx Group, Inc. ("the Purchaser") and Xxxxx X. Xxxx, Xx. (the "Stockholder").
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WHEREAS, the Stockholder is, as of the date hereof, the record and
beneficial owner of approximately 438,000 shares of common stock, par value $.01
per share (the "Common Stock") of Sun Coast Industries, Inc., a Delaware
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corporation (the "Company");
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WHEREAS, Parent, the Purchaser and the Company concurrently herewith
are entering into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"), which provides, among other things, for the
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acquisition of the Company by Parent by means of a cash tender offer (the
"Offer") for any and all of the outstanding shares of Common Stock and for the
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subsequent merger (the "Merger") of the Purchaser with and into the Company upon
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the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and the Purchaser
to enter into the Merger Agreement, and in order to induce Parent and the
Purchaser to enter into the Merger Agreement, the Stockholder has agreed to
enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and the Purchaser of the Merger Agreement and the foregoing and the
mutual representations, warranties, covenants and agreements set forth herein
and therein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Representations and Warranties of the Stockholder. The
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Stockholder hereby represents and warrants to Parent and the Purchaser as
follows:
(a) Stockholder is the record and beneficial owner of
approximately 438,000 shares of Common
Stock (as may be adjusted from time to time pursuant to Section 6 hereof,
the "Shares").
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(b) The Stockholder has all requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby, and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement.
(c) This Agreement has been duly authorized, executed and delivered
by the Stockholder and constitutes the legal, valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefor may be brought.
(d) Neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Stockholder is a party or bound or to which the Shares are
subject. Consummation by the Stockholder of the transactions contemplated
hereby will not violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Stockholder or the Shares, except for any necessary filing
under Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the
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Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
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Act"), or state takeover laws.
(e) The Shares and the certificates representing the Shares are now
and at all times during the term hereof will be held by the Stockholder, or by a
nominee or custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or
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arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
SECTION 2. Representations and Warranties of Parent and the
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Purchaser. Each of Parent and the Purchaser hereby, jointly and severally,
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represents and warrants to the Stockholder as follows:
(a) Each of Parent and the Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby, and has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by each of Parent and the Purchaser and constitutes the legal, valid
and binding obligation of each of Parent and the Purchaser, enforceable against
each of them in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally and (ii) the
availability of the remedy of specific performance or injunctive or other forms
of equitable relief may be subject to equitable defenses and would be subject to
the discretion of the court before which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by each of Parent and the Purchaser of the transactions
contemplated hereby will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which each of Parent and the Purchaser
is a party or bound. The consummation by each of Parent and the Purchaser of the
transactions contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to either Parent or the Purchaser,
except for any necessary filing under the HSR Act or state takeover laws.
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SECTION 3. Purchase and Sale of the Shares. The Stockholder hereby
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agrees that it shall tender the Shares into the Offer promptly, and in any event
no later than the third business day following the commencement of the Offer,
and that the Stockholder shall not withdraw any Shares so tendered. The
Purchaser hereby agrees to purchase all the Shares so tendered at a price per
Share equal to $10.75 per Share or any higher price that may be paid in the
Offer; provided, however, that the Purchaser's obligation to accept for payment
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and pay for the Shares in the Offer is subject to all the terms and conditions
of the Offer set forth in the Merger Agreement and Annex I thereto.
SECTION 4. Transfer of the Shares. Prior to the termination of this
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Agreement, except as otherwise provided herein, the Stockholder shall not: (i)
transfer (which term shall include, without limitation, for the purposes of this
Agreement, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Shares; (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
the Shares or any interest therein; (iii) grant any proxy, power-of-attorney or
other authorization or consent in or with respect to the Shares; (iv) deposit
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares or (v) take any other action that would in any way
restrict, limit or interfere with the performance of the Stockholder's
obligations hereunder or the transactions contemplated hereby.
SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) The Stockholder hereby irrevocably grants to, and appoints,
Parent and any nominee thereof, its proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Stockholder, to
vote the Shares, or grant a consent or approval in respect of the Shares, in
connection with any meeting of the stockholders of the Company (i) in favor of
the Merger, and (ii) against any action or agreement which would impede,
interfere with or prevent the Merger, including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
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the Company and a third party or any other proposal of a third party to acquire
the Company.
(b) The Stockholder represents that any proxies heretofore given
in respect of the Shares, if any, are not irrevocable, and that such proxies are
hereby revoked.
(c) The Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 5 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and, except as set forth in Section 8 hereof, is intended to be
irrevocable in accordance with the provisions of Section 212(e) of the Delaware
General Corporation Law (the "DGCL").
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SECTION 6. Certain Events. In the event of any stock split, stock
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dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by the Stockholder, the number of Shares shall be adjusted
appropriately, and this Agreement and the obligations hereunder shall attach to
any additional shares of Common Stock or other securities or rights of the
Company issued to or acquired by the Stockholder.
SECTION 7. Certain Other Agreements. The Stockholder will notify the
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Purchaser immediately if any proposals are received by, any information is
requested from, or any negotiations or discussions are sought to be initiated or
continued with the Stockholder or its officers, directors, employees,
investment bankers, attorneys, accountants or other agents, if any, in each
case in connection with any Acquisition Proposal or Acquisition Proposal
Interest (as such terms are defined in the Merger Agreement) indicating, in
connection with such notice, the name of the person indicating such Acquisition
Proposal Interest and the terms and conditions of any proposals or offers.
The Stockholder agrees that it will immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any
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parties conducted heretofore with respect to any Acquisition Proposal Interest.
The Stockholder agrees that it shall keep Parent informed, on a current basis,
of the status and terms of any Acquisition Proposal Interest. The Stockholder
agrees that it will not, and will use its best efforts to ensure that its
officers, directors, employees, investment bankers, attorneys, accountants and
other agents, if any, do not, directly or indirectly: (i) initiate, solicit or
encourage, or take any action to facilitate the making of, any offer or proposal
which constitutes or is reasonably likely to lead to any Acquisition Proposal,
(ii) enter into any agreement with respect to any Acquisition Proposal, or (iii)
in the event of an unsolicited written Acquisition Proposal engage in
negotiations or discussions with, or provide any information or data to, any
person (other than Parent, any of its affiliates or representatives and except
for information which has been previously publicly disseminated by the Company)
relating to any Acquisition Proposal.
SECTION 8. Further Assurances. The Stockholder shall, upon request
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of Parent or the Purchaser, execute and deliver any additional documents and
take such further actions as may reasonably be deemed by Parent or the Purchaser
to be necessary or desirable to carry out the provisions hereof and to vest the
power to vote the Shares as contemplated by Section 5 hereof in Parent.
SECTION 9. Termination. This Agreement, and all rights and
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obligations of the parties hereunder, shall terminate immediately upon the
earlier of (a) the termination of the Merger Agreement in accordance with its
terms or (b) the Effective Time (as defined in the Merger Agreement); provided,
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however, that Section 10 shall survive any termination of this Agreement.
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SECTION 10. Expenses. All fees and expenses incurred by any one
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party hereto shall be borne by the party incurring such fees and expenses.
SECTION 11. Public Announcements. Each of Parent, the Purchaser and
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the Stockholder agrees that it will not issue any press release or otherwise
make any public statement with respect to this Agreement or the
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transactions contemplated hereby without the prior consent of the other party,
which consent shall not be unreasonably withheld or delayed; provided, however,
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that such disclosure can be made without obtaining such prior consent if (i) the
disclosure is required by law and (ii) the party making such disclosure has
first used its best efforts to consult with the other party about the form and
substance of such disclosure.
SECTION 12. Miscellaneous.
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(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
business days after the day when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
(A) if to the Stockholder, to:
Xxxxx X. Xxxx, Xx.
c/o Xxxx Van den Xxxxxxx
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
and
(B) if to Parent or the Purchaser, to:
Xxxx Group, Inc.
c/o Fremont Partners, L.P.
00 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
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with a copy to:
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall be considered
one and the same agreement.
(e) This Agreement (including the Merger Agreement and any other
documents and instruments referred to herein) constitutes the entire
agreement, and supersedes all prior agreements and understandings, whether
written and oral, among the parties hereto with respect to the subject matter
hereof.
(f) 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 conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by, the parties and their
respective successors and assigns, and the provisions of this Agreement are
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
(h) If any term, provision, covenant or restriction herein is
held by a court of competent jurisdiction or other authority to be invalid,
void or unen-
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forceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
(i) Each of the parties hereto acknowledges and agrees that in
the event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will 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
in any action instituted in any state or federal court sitting in Wilmington,
Delaware. The parties hereto consent to personal jurisdiction in any such action
brought in any state or federal court sitting in Wilmington, Delaware and to
service of process upon it in the manner set forth in Section 12(b) hereof.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
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IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholder have
caused this Agreement to be duly executed and delivered as of the date first
written above.
XXXX GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Name:
Title:
SAFFRON ACQUISITION CORP.
By /s/ Xxxxxxx X. Xxxxxxxx
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Name:
Title:
By /s/ Xxxxx X. Xxxx, Xx.
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XXXXX X. XXXX, XX.
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