TENDER AND SUPPORT AGREEMENT
Exhibit
(d)(2)
This TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of September 28,
2009, is entered into by and among the persons listed on Schedule I hereto (each, a
“Stockholder”), ASP GT Holding Corp., a Delaware corporation (“Parent”) and ASP GT
Acquisition Corp., a Delaware corporation and a wholly owned Subsidiary of Parent (the
“Purchaser”).
WHEREAS, contemporaneously with the execution of this Agreement, Parent, the Purchaser and
GenTek Inc., a Delaware corporation (the “Company”), are entering into an Agreement and
Plan of Merger, dated as of the date hereof (as amended from time to time, the “Merger
Agreement”), providing, among other things, for (i) an offer by the Purchaser (the
“Offer”) to purchase all of the outstanding shares of common stock, no par value, of the
Company (the “Company Common Stock”) (such shares of the Company Common Stock to be
purchased are hereinafter referred to as the “Shares”), at a price per Share of $38.00
(such amount or any different amount per Share that may be paid pursuant to the Offer, the
“Offer Price”) and (ii) following the acceptance for payment of Shares pursuant to the
Offer, the merger of the Purchaser with and into the Company (the “Merger”) pursuant to
which all then outstanding shares of Company Common Stock will be converted into the right to
receive the Offer Price (without interest and less any applicable withholding tax);
WHEREAS, each Stockholder is the beneficial owner of such number of Shares and Equity
Interests, each as set forth opposite such Stockholder’s name on Schedule I hereto (such
Shares, together with any other Shares in the Company beneficially owned by such Stockholder and
any other Shares in the Company of which such Stockholder obtains beneficial ownership after the
date hereof (including through the exercise or conversion of Equity Interests), being collectively
referred to herein as the “Covered Shares” of such Stockholder); and
WHEREAS, as a condition of and material inducement to Parent’s and the Purchaser’s willingness
to enter into the Merger Agreement, each of the Stockholders has agreed to enter into this
Agreement and tender and vote his or its Covered Shares as described herein.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. For the purposes of this Agreement, unless the context
otherwise requires, capitalized terms used and not otherwise defined in this Agreement shall have
the respective meanings ascribed to them in this Section 1, or if no meaning is ascribed in
this Section 1 or elsewhere in this Agreement, then such terms shall have the respective
meanings ascribed to them in the Merger Agreement.
“affiliate” has the meaning set forth in the Merger Agreement; provided,
however, that the Company shall be deemed not to be an affiliate of Stockholder for
purposes of this Agreement.
“beneficial ownership” (and related terms such as “beneficially owned” or
“beneficial owner”) has the meaning set forth in Rule 13d-3 under the Exchange Act,
including all securities as to which such Person has the right to acquire, without regard to the
60-day period set forth in such rule.
“Transfer” means, with respect to any Equity Interest or other security, including the
Covered Shares, the direct or indirect transfer, sale (including short sale), pledge,
hypothecation, encumbrance, assignment or other disposition (whether by sale, merger,
consolidation, liquidation, dissolution, dividend, distribution or otherwise) of such Equity
Interest or other security or the beneficial ownership thereof, the offer to make such a transfer,
sale, pledge, hypothecation, encumbrance, assignment or other disposition, and each option,
agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing.
As a verb, “Transfer” shall have a correlative meaning.
2. Voting Agreement. At any meeting of the stockholders of the Company, however
called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or
other approval of the stockholders of the Company is sought (in writing or otherwise), each
Stockholder shall, and shall instruct any holder of record of such Stockholder’s Covered Shares
(except to the extent such Covered Shares have been tendered to Purchaser in the Offer and not
withdrawn) to, (i) appear at each such meeting or otherwise cause all of such Stockholder’s Covered
Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or
cause to be voted), or execute and deliver a written consent (or cause a written consent to be
executed and delivered) covering, all such Covered Shares (A) in favor of adopting the Merger
Agreement, and the approval of the Merger and each of the other transactions contemplated by the
Merger Agreement and this Agreement and any other matter that must be approved by the stockholders
of the Company in order for the transactions contemplated by the Merger Agreement to be
consummated, including the election to the Board of any person designated by Parent or the
Purchaser in accordance with Section 1.8 of the Merger Agreement, and (B) against any
proposal, action or Contract that would reasonably be expected to result in (1) a breach in any
respect of any covenant, representation, warranty or any other obligation or agreement of the
Company under the Merger Agreement, (2) any of the conditions set forth in Article 6 or
Annex I of the Merger Agreement not being fulfilled or satisfied, (3) any action (including
any amendment to the Company Certificate or the Company Bylaws, as in effect on the date hereof),
agreement or transaction that would reasonably be expected to frustrate the purposes of, impede,
hinder, interfere with, nullify, prevent, delay or adversely affect the consummation of the
transactions contemplated by the Merger Agreement, including the Offer, (4) any Acquisition
Proposal or (5) any merger, acquisition, sale, consolidation, reorganization, recapitalization,
extraordinary dividend, dissolution, liquidation or winding up of or by the Company, or any other
extraordinary transaction involving the Company (other than the Merger).
3. Agreement to Tender. Each Stockholder shall validly tender (and shall not
withdraw), pursuant to and in accordance with the terms of the Offer and the Offer Documents, such
Stockholder’s Covered Shares into the Offer. In furtherance, and without limiting the generality,
of the foregoing, promptly, but in any event no later than ten Business Days after commencement of
the Offer, each Stockholder shall (i) deliver or cause to be delivered to the depositary designated
in the Offer Documents (A) a letter of transmittal with respect to his or its Covered Shares in the
form included in the Offer Documents and otherwise complying with the terms of the Offer, (B) any certificates representing his or
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its Covered Shares and (C) any
and all other documents or instruments required to be delivered pursuant to the terms of the Offer
or the Offer Documents and (ii) instruct and cause any other Person who is the holder of record of
any Covered Shares beneficially owned by such Stockholder (including such Stockholder’s broker) to
validly tender (and not withdraw, unless either the Offer or this Agreement terminates pursuant to
Section 8 hereof) such Covered Shares pursuant to and in accordance with the terms and
conditions of the Offer and the Offer Documents.
4. No Disposition.
(a) No Disposition or Adverse Act. Stockholder hereby covenants and agrees that,
except as contemplated by this Agreement, the Merger Agreement and the Offer Documents, each
Stockholder shall not, directly or indirectly, (i) offer to Transfer, Transfer or consent to any
Transfer of any or all of his or its Covered Shares or any interest therein without the prior
written consent of Parent, (ii) enter into any Contract with respect to any Transfer of any of his
or its Covered Shares or any interest therein, (iii) grant any proxy, power-of-attorney, right of
first offer or refusal or other authorization or consent in or with respect to any of his or its
Covered Shares, (iv) deposit any of his or its Covered Shares into a voting trust or enter into a
voting agreement or arrangement with respect to any of his or its Covered Shares, (v) otherwise
permit any Liens to be created on any Covered Shares or (vi) take any other action that would make
any representation or warranty of such Stockholder contained herein untrue or incorrect in any
material respect or in any way restrict, limit or interfere in any material respect with the
performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby.
Any attempted Transfer of Covered Shares or any interest therein in violation of this Section
4(a) shall be null and void.
5. Waiver of Appraisal and Dissenters’ Rights. Each Stockholder hereby irrevocably
waives and agrees not to exercise any and all rights of appraisal or rights to dissent from the
Merger that such Stockholder may have.
6. Notices of Certain Events. Each Stockholder shall promptly notify Parent and the
Purchaser of any development occurring after the date hereof that causes any breach of any of the
representations and warranties of Stockholder set forth in this Agreement.
7. Representations and Warranties of Stockholder. Each Stockholder hereby represents
and warrants to Parent as follows:
(a) Title. Each Stockholder is, and during the Term will be, the sole beneficial and,
except as otherwise set forth on Schedule I, record owner of and has good and marketable
title to the Shares and other Equity Interests set forth opposite such Stockholder’s name on
Schedule I. Such Shares and other Equity Interests constitute all of the capital stock and
any other Equity Interests in the Company owned of record or beneficially by such Stockholder on
the date hereof and except for such Shares and such Equity Interests, such Stockholder is not the
beneficial owner of, and does not have any right to acquire (whether currently, upon lapse of time,
following the satisfaction of any conditions, upon the occurrence of any event or any combination
of the foregoing), any Shares or any other Equity Interests in the Company. Such Stockholder has
the sole power, directly or indirectly, to vote, dispose of, exercise and convert, as applicable,
and to demand or waive any appraisal rights
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or issue instructions with respect to the matters set
forth in this Agreement, in each case with respect to all of the Shares and other Equity Interests
set forth opposite such Stockholder’s name on Schedule I with no limitations,
qualifications or restrictions on such rights, subject to applicable securities Laws and the terms
of this Agreement. Except as permitted by this Agreement, such Shares and other Equity Interests,
and any certificates representing such Shares, are now, and at all times during the Term will be,
held by such Stockholder free and clear of any and all liens, pledges, claims, options, powers of
attorney, proxies, voting trusts or agreements, security interests, understandings or arrangements
or any other encumbrances whatsoever on title, transfer or exercise of any rights of a stockholder
in respect of such Shares and other Equity Interests (other than as created by this Agreement)
(collectively, “Liens”). Except as provided in this Agreement, there are no agreements or
arrangements of any kind, contingent or otherwise, to which Stockholder is a party obligating
Stockholder to Transfer or cause to be Transferred, any of Stockholder’s Shares or other Equity
Interests. Except pursuant to this Agreement, no Person has any contractual or other right or
obligation to purchase or otherwise acquire any of Stockholder’s Shares or other Equity Interests.
(b) Organization and Qualification. Such Stockholder, if not an individual, is a
legal organization duly organized and validly existing and in good standing under the Laws of the
jurisdiction of its organization.
(c) Authority. Such Stockholder has all necessary power and authority and legal
capacity to execute and deliver this Agreement, to perform his or its obligations hereunder, and to
consummate the transactions contemplated hereby, and no other proceedings or actions on the part of
such Stockholder are necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby. This Agreement constitutes
a valid and legally binding obligation of Stockholder, enforceable against Stockholder in
accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights
generally and general equitable principles (whether considered in a proceeding in equity or at
law).
(d) Due Execution and Delivery. This Agreement has been duly and validly executed and
delivered by such Stockholder and, assuming due authorization, execution and delivery hereof by
Parent, constitutes a legal, valid and binding agreement of Stockholder, enforceable against such
Stockholder in accordance with its terms.
(e) No Filings; No Conflict or Default. Except for the filing with the SEC of any
Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 of the
Exchange Act and filings under the HSR Act, no filing with, and no consent, approval, authorization
or permit of, or declaration or registration with or notification to, any Governmental Entity or
any other Person is necessary for the execution and delivery of this Agreement by such Stockholder,
the consummation by such Stockholder of the transactions contemplated hereby or the compliance by
such Stockholder with the provisions hereof. None of the execution, delivery or performance 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 will (with
or without notice or lapse of time or both) (i) result in a violation or breach of, or constitute a
default (or give
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rise to
any third party right of termination, cancellation, modification, acceleration or entitlement) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, lease, license, permit, Contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any kind, including any
voting agreement, proxy arrangement, pledge agreement, shareholders agreement or voting trust, to
which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s
properties or assets (including the Covered Shares) may be bound, (ii) result in the creation of a
Lien on any of such Stockholder’s assets or property (including the Covered Shares), (iii) violate
any judgment, order, writ, injunction, decree or award of any court, administrative agency or other
Governmental Entity that is applicable to such Stockholder or any of such Stockholder’s properties
or assets or (iv) constitute a violation by such Stockholder of any Law or regulation of any
jurisdiction.
(f) No Litigation. There is no suit, claim, action, proceeding, hearing, notice of
violation, investigation, arbitration or demand letter pending or, to the knowledge of such
Stockholder, threatened against or affecting Stockholder, or such Stockholder’s assets or property,
at Law or in equity before or by any Governmental Entity or any other Person that could reasonably
be expected to impair the ability of Stockholder to perform his or its obligations hereunder or
consummate the transactions contemplated hereby. No Stockholder is subject to any outstanding
order, writ, injunction, judgment, decree or arbitration ruling, settlement, award or other finding
that would impair the ability of such Stockholder to perform his or its obligations hereunder or
consummate the transactions contemplated hereby.
(g) Opportunity to Review; Reliance. Stockholder has had the opportunity to review
the Merger Agreement and this Agreement with counsel of its own choosing. Stockholder understands
and acknowledges that Parent and Purchaser are entering into the Merger Agreement in reliance upon
Stockholder’s execution, delivery and performance of this Agreement.
(h) No Fees. 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.
8. Termination. The term (the “Term”) of this Agreement, with respect to any
Stockholder, shall commence on the date hereof and shall terminate upon the earliest of (i) the
mutual written agreement of Parent and such Stockholder, (ii) the Effective Time, (iii) the date of
termination of the Merger Agreement in accordance with its terms and (iv) any withdrawal or
modification of the Company Board Recommendation in accordance with the terms of the Merger
Agreement; provided that nothing herein shall relieve any party hereto from liability for
any breach of this Agreement and Sections 8 and 10 shall survive any termination of
this Agreement. Upon termination of this Agreement, any Covered Shares tendered into the Offer
prior to such termination may be withdrawn from the Offer.
9. Fiduciary Responsibilities. Nothing in this Agreement shall be construed to
prohibit any Stockholder or any of such Stockholder’s Representatives who is an officer or member
of the Company Board from taking any action in his or her capacity as
an officer or member of the Company Board in accordance with the terms of the Merger Agreement and
applicable Delaware law.
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10. Miscellaneous.
(a) Entire Agreement. This Agreement (together with Schedule I) constitutes
the entire agreement of the parties and supersedes all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject matter hereof and,
except as otherwise expressly provided herein, are not intended to confer upon any other Person any
rights or remedies hereunder.
(b) Reasonable Efforts. Subject to the terms and conditions of this Agreement, each
of the parties hereto agrees to use their reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper or advisable under
applicable Laws to consummate and make effective the transactions contemplated hereby. At the other
party’s reasonable request and without further consideration, each party hereto 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.
(c) Disclosure. Each Stockholder hereby authorizes Parent and the Purchaser to publish
and disclose in the Offer Documents, any announcement or disclosure required by the Nasdaq
Marketplace Rules, any filing with any Governmental Entity required to be made under the Merger
Agreement, and, if approval of the Company’s stockholders is required under applicable Law, the
Proxy Statement (including all documents and schedules filed with the SEC in connection with either
of the foregoing), its identity and ownership of the Covered Shares and the nature of its
commitments, arrangements and understandings under this Agreement.
(d) No Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by operation of Law or otherwise without the prior written
consent of the Stockholders (in the case of any assignment by Parent) or Parent (in the case of an
assignment by any Stockholder). Any purported assignment not permitted under this Section
10(d) shall be null and void.
(e) Binding Successors. Without limiting any other rights Parent may have hereunder
in respect of any Transfer of the Covered Shares, each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Covered Shares beneficially owned by such Stockholder
and his or its affiliates and shall be binding upon any Person to which legal or beneficial
ownership of such Covered Shares shall pass, whether by operation of Law or otherwise, including
such Stockholder’s heirs, guardians, administrators or successors.
(f) Amendments. This Agreement may not be amended, changed, supplemented or otherwise
modified except by an instrument in writing signed on behalf of Parent and each Stockholder against
whom such amendment, change, supplement or modification is sought to be enforced.
(g) Notice. Any notices or other communications required or permitted under, or
otherwise given in connection with, this Agreement shall be in
writing and shall be deemed to have been duly given (a) when delivered or sent if delivered in Person or sent by
facsimile
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transmission (provided confirmation of facsimile transmission is obtained), (b) on the
fifth Business Day after dispatch by registered or certified mail or (c) on the next Business Day
if transmitted by national overnight courier, in each case as follows:
If to the Stockholders:
At the respective addresses and facsimile numbers set forth on Schedule I hereto.
If to Parent:
ASP GT Acquisition Corp.
c/o American Securities LLC
The Chrysler Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
c/o American Securities LLC
The Chrysler Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy (which will not constitute notice to Parent) to:
Xxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(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 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 possible
in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
(i) Remedies. 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 such right, power or remedy by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such party.
(j) No Waiver. 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 any other party hereto with such
party’s obligations hereunder,
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and any custom or practice of the parties at variance with the terms hereof, shall
not constitute a waiver by such party of such party’s right to exercise any such or other right,
power or remedy or to demand such compliance.
(k) No Third Party Beneficiaries. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors and assigns, 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.
(l) Governing Law. This Agreement shall be governed by, and construed in accordance
with, the Laws of the State of Delaware, without regard to Laws that may be applicable under
conflicts of Laws principles (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the Laws of any jurisdiction other than the State of Delaware.
(m) Submission to Jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally submits, for himself or itself, as applicable, and his or its property, as
applicable, to the exclusive jurisdiction of the Court of Chancery of Delaware State, or, in the
event (but only in the event) that such court does not have subject matter jurisdiction over such
action or proceeding, in the Federal courts of the United States of America, sitting in Delaware,
and any appellate court from any thereof, in any action, suit or proceeding arising out of or
relating to this Agreement or the agreements delivered in connection herewith or the transactions
contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto,
and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such
action, suit or proceeding except in such courts, (ii) agrees that any claim in respect of any such
action, suit or proceeding may be heard and determined in such Delaware State court or, to the
extent permitted by Law, in such Federal court, (iii) waives, to the fullest extent it may legally
and effectively do so, and agrees not to assert, any objection which it may now or hereafter have
to the laying of venue of any such action, suit or proceeding in any such Delaware State or Federal
court, and (iv) waives, to the fullest extent permitted by Law, and agrees not to assert, in any
such action, suit or proceeding the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such Delaware State or Federal court or any claim that it is not
subject personally to the jurisdiction of such courts, that his or its property is exempt or immune
from attachment or execution, or that this Agreement, the Merger Agreement or the transactions
contemplated hereby or thereby may not be enforced in or by such courts. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
Each party to this Agreement irrevocably consents to service of process in the manner provided for
notices in Section 10(g). Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by Law.
(n) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
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AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) 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 EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH
WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
10(n).
(o) Specific Performance. The parties hereto agree that irreparable damage would
occur to Parent and the Purchaser in the event that any of the provisions of this Agreement were
not performed by Stockholder in accordance with their specific terms or were otherwise breached by
any party and that money damages may not be an adequate remedy therefor. It is accordingly agreed
that, Parent and the Purchaser shall be entitled to an injunction or injunctions against any
Stockholder to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at Law or in equity. The terms of this
Section 10(o) shall not be deemed to be superseded, amended or modified in any respect by
the terms of any other provisions of this Agreement.
(p) Interpretation. Each party hereto has participated in the drafting of this
Agreement, which each party acknowledges is the result of extensive negotiations between the
parties. If an ambiguity or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provision. For purposes of
this Agreement, whenever the context requires: the singular number shall include the plural, and
vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender
shall include the masculine and neuter genders; and the neuter gender shall include masculine and
feminine genders. As used in this Agreement, the words “include” and “including,” and variations
thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed
by the words “without limitation.” Except as otherwise indicated, all references in this Agreement
to “Sections,” “Exhibits,” “Annexes” and “Schedules” are intended to refer to Sections of this
Agreement and Exhibits, Annexes and Schedules to this Agreement. All references in this Agreement
to “$” are intended to refer to U.S. dollars. Unless otherwise specifically provided for herein,
the term “or” shall not be deemed to be exclusive.
(q) Counterparts. This Agreement may be executed 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.
(r) Expenses. All costs and expenses incurred by the parties hereto shall be borne
solely and entirely by the party which has incurred the same, whether or not the transactions
contemplated by this Agreement or the Merger Agreement are consummated.
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(s) No Ownership Interest. Nothing contained in this Agreement shall be deemed, upon
execution, to vest in Parent any direct or indirect ownership or incidence of ownership of or with
respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the
Covered Shares shall remain vested in and belong to the Stockholders, and Parent shall have no
authority to manage, direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of the Company or exercise any power or authority to direct any Stockholder
in the voting of any of the Covered Shares, except as otherwise provided herein.
[Signature page follows.]
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IN WITNESS WHEREOF, Parent and the Purchaser have caused this Agreement to be duly executed as
of the day and year first above written.
| ASP GT ACQUISITION CORP. | ||||||||
| By: | /s/ Xxxxxxx X. XxXxxxx | |||||||
| Name: | Xxxxxxx X. XxXxxxx | |||||||
| Title: | President | |||||||
| ASP GT HOLDING CORP. | ||||||||
| By: | /s/ Xxxxxxx X. XxXxxxx | |||||||
| Name: | Xxxxxxx X. XxXxxxx | |||||||
| Title: | President | |||||||
[Signature page to Tender and Support Agreement]
IN WITNESS WHEREOF, Stockholders have caused this Agreement to be duly executed as of the day
and year first above written.
| HAWKEYE CAPITAL MANAGEMENT, LLC | ||||||||
| By: | /s/ Xxxxxxx Xxxxx | |||||||
| Name: | Xxxxxxx Xxxxx | |||||||
| Title: | Managing Member | |||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||||
| Xxxxxxx X. Xxxxx | ||||||||
| /s/ Xxxxxxx X. Xxxxxxx, Xx. | ||||||||
| /s/ Xxxxxxx X. Xxxxxxx, Xx. | ||||||||
| /s/ Xxxxxx Xxxxx | ||||||||
| Xxxxxx Xxxxx | ||||||||
| /s/ Xxxxxx Xxxx | ||||||||
| Xxxxxx Xxxx | ||||||||
| /s/ Xxxxxxx X. Xxxxxxxxx | ||||||||
| /s/Xxxxxxx X. Xxxxxxxxx | ||||||||
| /s/ Xxxxxxx Xxxxxxxx | ||||||||
| Xxxxxxx Xxxxxxxx | ||||||||
[Signature page to Tender and Support Agreement]
SCHEDULE I
| Name and Contact | Shares Owned | |||||
| Information for Stockholder | Beneficially and of Record | Other Equity Interests Held | ||||
Hawkeye Capital Management LLC Xxxxxxx X. Xxxxx |
904,934 | None | ||||
000 0xx Xxxxxx |
||||||
00xx Xxxxx |
||||||
Xxx Xxxx, XX 00000 |
||||||
Xxxxxxx X. Xxxxxxx, Xx. |
137,064 | Options to purchase | ||||
c/o 00 Xxxx Xxxxxx Xxxx |
157,997 shares of Common | |||||
Xxxxxxxxxx, XX 00000
|
Stock; 000 Xxxxxxx X Xxxxxxxx, convertible into 484.13 shares of Common Stock | |||||
Xxxxxx Xxxxx |
36,943 | Options to purchase 52,136 | ||||
c/o 00 Xxxx Xxxxxx Xxxx |
shares of Common Stock | |||||
Xxxxxxxxxx, XX 00000 |
||||||
Xxxxxx Xxxx |
51,283 | Options to purchase 26,896 | ||||
c/o 00 Xxxx Xxxxxx Xxxx |
shares of Common Stock | |||||
Xxxxxxxxxx, XX 00000 |
||||||
Xxxxxxx X. Xxxxxxxxx |
32,510 | Options to purchase 39,796 | ||||
c/o 00 Xxxx Xxxxxx Xxxx |
shares of Common Stock | |||||
Xxxxxxxxxx, XX 00000 |
||||||
Xxxxxxx Xxxxxxxx |
10,429 | Options to purchase 19,442 | ||||
c/o 00 Xxxx Xxxxxx Xxxx |
shares of Common Stock | |||||
Xxxxxxxxxx, XX 00000 |
||||||
