SUPPORT AGREEMENT
Exhibit 2.2
This SUPPORT AGREEMENT (this “Agreement”), dated September 5, 2008, is by and among
Cyanco Holding Corp., a Delaware corporation (“Parent”), Calypso Acquisition Corp., a Utah
corporation (“Purchaser”), and E. Xxxxx Xxxxxx, an individual and holder of shares of Common
Stock (as defined below) (the “Stockholder”).
WHEREAS, Parent, Purchaser and Nevada Chemicals, Inc., a Utah corporation (the
“Company”), propose to enter into an Agreement and Plan of Merger, dated as of the date
hereof (the “Merger Agreement”), which provides, among other things, for the merger of
Purchaser with and into the Company, with the Company continuing as the surviving corporation (the
“Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement.
Capitalized terms used herein without definition shall have the respective meanings specified in
the Merger Agreement;
WHEREAS, as of the date hereof, the Stockholder beneficially owns 2,103,852 shares of
common stock, par value $0.001 per share, of the Company (the “Common Stock”) (such shares
of Common Stock, together with any other shares of Common Stock acquired (whether beneficially or
of record) by the Stockholder after the date hereof and prior to the termination of all of the
Stockholder’s obligations under this Agreement are collectively referred to herein as the
“Stockholder’s Shares”);
WHEREAS, as of the date hereof, the Stockholder beneficially owns no options to
acquire shares of Common Stock (such options to acquire shares of Common Stock, together with any
other options, warrants and/or other rights acquired (whether beneficially or of record) by the
Stockholder after the date hereof and prior to the termination of all of the Stockholder’s
obligations under this Agreement are collectively referred to herein as the “Stockholder’s
Options”); and
WHEREAS, as a condition to the willingness of Parent and Purchaser to enter into the Merger
Agreement and as an inducement and in consideration therefor, the Stockholder has agreed to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth herein and in the Merger Agreement, and intending to be legally bound hereby, the parties
hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Parent and Purchaser as follows:
(a) Ownership. The Stockholder (i) is the record or beneficial owner, and has good
and marketable title to, the Stockholder’s Shares free and clear of any and all liens, claims,
security interests, proxies, voting trusts or agreements, options, rights, understandings or
arrangements or any other encumbrances whatsoever on title, transfer or exercise of any rights of
the Stockholder in respect of the Stockholder’s Shares (collectively, “Encumbrances”); (ii)
is the record or beneficial holder of the Stockholder’s Options, free and clear of any and all
Encumbrances; (iii) does not own, of record or beneficially, any shares of capital stock of the
Company (or any options, warrants and/or other rights to acquire any such shares) other than the
Stockholder’s
Shares and the Stockholder’s Options set forth in the second and third Recitals hereto,
respectively; and (iii) has the sole right to vote, sole power of disposition, sole power to issue
instructions with respect to the matters set forth herein, 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 the Stockholder’s Shares and the Stockholder’s Options, with no material
limitations, qualifications or restrictions on such rights, subject to applicable federal
securities laws, the terms of any agreement (including the Company Stock Option Plan) pursuant to
which the Stockholder’s Options were granted (a complete and correct copy of which has been
delivered to Parent and Purchaser), and the terms of this Agreement.
(b) Power; Enforceability. The Stockholder has all requisite power and authority to
execute and deliver this Agreement and to perform his obligations hereunder and otherwise
consummate the transactions contemplated hereby. This Agreement has been duly and validly executed
and delivered by the Stockholder, and constitutes a valid and binding obligation of the Stockholder
enforceable 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.
(c) No Conflict. The execution and delivery of this Agreement and the consummation by
the Stockholder of the transactions contemplated hereby will not (i) 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 by which the
Stockholder is bound or (ii) 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. The Stockholder represents and warrants that he has not had any agreement,
arrangement or understanding with Parent or Purchaser with respect to the Stockholder’s Shares or
the Stockholder’s Options prior to the execution of this Agreement or the time at which the Board
of Directors of the Company approved the Merger Agreement.
(d) No Filings; Consents. Other than as required under the applicable requirements of
the Securities Exchange Act of 1934, as amended and including any regulations promulgated
thereunder, no consents or approvals of or filings or registrations with any Governmental Entity
are necessary in connection with (i) the execution and delivery by the Stockholder of this
Agreement and (ii) the performance by the Stockholder of his respective obligations under this
Agreement.
(e) Litigation. There is no action, suit, investigation, complaint or other
proceeding pending against the Stockholder or, to the knowledge of the Stockholder, threatened
against the Stockholder or any other holder of Common Stock or other Person that restricts in any
material respect or prohibits (or, if successful, would restrict or prohibit) the exercise by any
party or beneficiary of its rights under this Agreement or the performance by any party of its
obligations under this Agreement.
(f) Stockholder Has Adequate Information. The Stockholder is a sophisticated investor
and has independently and without reliance upon Parent or Purchaser, and based on such information
as the Stockholder has deemed appropriate, made his own analysis and decision to enter into this
Agreement. The Stockholder has received and reviewed the Merger Agreement
and acknowledges that neither Parent nor Purchaser has made nor makes any representation or
warranty to the Stockholder, whether express or implied, of any kind or character except as
expressly set forth in this Agreement.
(g) No Setoff. To the knowledge of the Stockholder, there are no legal or equitable
defenses or counterclaims that have been or may be asserted by or on behalf of the Company, as
applicable, to reduce the amount of the Stockholder’s Shares or affect the validity or
enforceability of the Stockholder’s Shares.
(h) Reliance. The Stockholder understands and acknowledges that Parent and Purchaser
are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and
performance of this Agreement.
SECTION 2. Representations and Warranties of Parent and Purchaser. Each of Parent and
Purchaser hereby, jointly and severally, represents and warrants to the Stockholder as follows:
(a) Organization; Power. Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the jurisdiction in which it is
incorporated, and each of Parent and Purchaser has all requisite corporate power and corporate
authority to execute and deliver this Agreement and to perform its obligations hereunder and
otherwise consummate the transactions contemplated hereby, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement.
(b) Enforceability. This Agreement has been duly authorized, executed and delivered
by each of Parent and Purchaser, and constitutes a valid and binding obligation of Parent and
Purchaser enforceable 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.
(c) No Conflict. The execution and delivery of this Agreement and the consummation by
Parent and Purchaser of the transactions contemplated hereby will not (i) result in a violation of,
or a default under, or conflict with (x) any provisions of the organizational documents of Parent
or Purchaser or (y) any contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which such Parent or Purchaser is a party or by which Parent or
Purchaser or their assets are bound, or (ii) violate, or require any consent, approval, or notice
under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to
Parent or Purchaser.
SECTION 3. Transfer of the Stockholder’s Shares or Stockholder’s Options; Other Actions.
Prior to the termination of this Agreement, except as otherwise provided herein or as agreed to in
writing by Parent, the Stockholder hereby agrees that he will not, directly or indirectly: (a)
transfer, assign, sell, gift-over, pledge or otherwise dispose of (“Transfer”) any or all
of the Stockholder’s Shares or the Stockholder’s Options, or any right or interest therein, or make
any offer or agreement relating thereto; (b) grant any proxy, power-of-attorney or other
authorization or consent with respect to any of the Stockholder’s Shares; or (c) deposit any of the
Stockholder’s Shares into a voting trust, or enter into a voting agreement or arrangement with
respect to any of the Stockholder’s Shares.
SECTION 4. Covenant to Tender. The Stockholder hereby agrees that he will validly tender
(or cause the record owner of such shares to validly tender) the Stockholder’s Shares pursuant to
and in accordance with the terms of the Offer, as soon as practicable after commencement of the
Offer (but in no event later than five business days after the filing of the Schedule TO by the
Parent and/or Purchaser with the SEC in the case of the Stockholder’s Shares then owned by the
Stockholder, or the first business day following their acquisition in the case of any additional
shares of Common Stock acquired by the Stockholder), by physical delivery of the certificates
therefor (or instructions for such delivery to the record owner of such shares) and to not withdraw
the Stockholder’s Shares, except following termination of this Agreement pursuant to Section
11 hereof. The Stockholder hereby acknowledges and agrees that Parent’s and the Purchaser’s
obligation to accept for payment and pay for the Stockholder’s Shares is subject to the terms and
conditions of the Offer. The Stockholder hereby agrees to permit Parent and the Purchaser to
publish and disclose in the Offer Documents the identity and ownership of the Stockholder’s Shares
and the nature of the Stockholder’s commitments, arrangements and understandings under this
Agreement.
SECTION 5. Covenant to Vote. The Stockholder hereby agrees to vote (or to cause the voting
of) all of the Stockholder’s Shares beneficially owned or controlled by the Stockholder, or to
grant a consent or approval in respect of the Stockholder’s Shares, in connection with any meeting
of the stockholders of the Company (a) in favor of any merger or any other transaction pursuant to
which Parent, Purchaser or any of their respective Affiliates proposes to acquire the Company,
whether by tender offer, merger, or otherwise, in which stockholders of the Company would receive
consideration per share of Common Stock equal to or greater than the consideration to be received
by such stockholders in the Offer, and/or (b) against any action, agreement or proposal which would
or could reasonably be expected to impede, frustrate, prevent, nullify or result in a material
breach of any representation, warranty or covenant or any other obligation or agreement of the
Company under or with respect to, the Offer or the Merger, the Merger Agreement, this Agreement or
any of the transactions to which the Company is a party or transactions contemplated by this
Agreement, including, (i) any other extraordinary corporate transaction, including, an Acquisition
Proposal, merger, acquisition, joint venture, sale, consolidation, reorganization, liquidation or
winding up of or involving the Company and a third party, or any other proposal of a third party to
acquire the Company or all or substantially all of the assets thereof and (ii) any amendment of the
articles of incorporation or By-laws of the Company. The Stockholder shall not commit or agree to
take any action inconsistent with the foregoing.
SECTION 6. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and appoints Xxxxxx Xxxxx and Xxxx Xxxxx, or
either of them, in their respective capacities as officers of Parent, and any individual who shall
hereafter succeed to any such office of Parent, and each of them individually, the Stockholder’s
proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead
of the Stockholder, to tender the Stockholder’s Shares as contemplated by Section 4 or to
vote the Stockholder’s Shares in favor of the Merger and otherwise as contemplated by Section
5.
(b) The Stockholder represents that any proxies heretofore given in respect of the
Stockholder’s Shares are revocable, and that any such proxies are hereby revoked.
(c) The Stockholder hereby affirms that the irrevocable proxy set forth in this Section
6 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 and
is intended to be irrevocable. The Stockholder hereby further affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby
ratifies and confirms all that such proxies and attorneys-in-fact may lawfully do or cause to be
done by virtue hereof.
SECTION 7. Approval. The Stockholder hereby consents to the actions taken by the Board of
Directors of the Company in adopting, approving and declaring advisable this Agreement, the Merger
Agreement, the Offer and the other transactions contemplated hereby or thereby. In addition, the
Stockholder hereby (a) agrees to resign from any and all positions of employee, director and/or
officer of the Company and/or any of its Subsidiaries, effective immediately upon the earlier of
(i) Parent’s request at any time after the purchase of Shares by Purchaser pursuant to the Offer
and (ii) the Effective Time, and (b) acknowledges and agrees that, notwithstanding anything to the
contrary set forth in the Company Stock Option Plan or in any agreement entered into in connection
therewith, as of the Effective Time, the Stockholder’s Options (to the extent not previously
exercised) shall no longer be outstanding, shall automatically be canceled and retired, and shall
cease to exist, and the Stockholder shall cease to have any rights with respect thereto, except the
right to receive the Option Consideration into which the Stockholder’s Options shall have been
converted pursuant to and in accordance with the terms of the Merger Agreement.
SECTION 8. Noncompetition, Nonsolicitation, Nondisclosure. In consideration of Purchaser’s
agreement to purchase the Stockholder’s Shares pursuant to the Offer and Parent’s and Purchaser’s
agreement to enter into this Agreement and the Merger Agreement, and as a condition thereto, the
Stockholder covenants and agrees as follows:
(a) Non-Competition. During the period commencing on the date upon which the
Purchaser or any of its Affiliates purchases Shares pursuant to the Offer (the “Purchase
Date”) and ending on the fifth anniversary thereof (the “Restricted Period”), the
Stockholder shall not, directly or indirectly through another Person, own any interest in, manage,
control, participate in (whether as an owner, operator, manager, consultant, officer, director,
employee, partner, investor, agent, representative or otherwise), consult with, render services
for, or otherwise engage anywhere in any business engaged directly or indirectly in manufacturing,
marketing or selling liquid or solid sodium cyanide or other cyanide salt products, equipment or
consultancy services, or in any other business in which the Company or any of its Subsidiaries has
engaged at any time within the two-year period immediately preceding the Purchase Date;
provided that nothing in this Section 8(a) shall prevent the Stockholder
from being a passive owner of not more than 1% of the outstanding stock of any class of a
corporation which is publicly traded so long as none of such Persons has any active participation
in the business of such corporation. The Stockholder acknowledges that the restrictions set forth
above are reasonable and necessary to protect the goodwill of the Company’s and its Subsidiaries’
businesses being sold pursuant to the Merger Agreement.
(b) Non-Solicitation. During the Restricted Period, the Stockholder shall not,
directly, or indirectly through another Person, (i) induce or attempt to induce any employee of the
Company or any of its Subsidiaries to leave the employ of the Company or any of its Subsidiaries,
or in any way interfere with the relationship between the Company or any of its Subsidiaries and
any employee thereof, (ii) hire or otherwise retain for services any person who was an employee of
Cyanco at any time during the one-year period immediately prior to the Purchase Date, or (iii) call
on, solicit or service any customer, supplier, licensee, licensor, lessor or other business
relation of the Company or any of its Subsidiaries (including any Person that was a customer or
supplier or other potential or prospective business relation of the Company or any of its
Subsidiaries at any time during the one-year period immediately prior to such call, solicit or
service), induce or attempt to induce such Person to cease doing business with the Company or any
of its Subsidiaries, or in any way interfere with the relationship between any such customer,
supplier, licensee, business relation, or other potential or prospective business relation and the
Company or any of its Subsidiaries (including making any negative statements or communications
about the Company or any of its Subsidiaries or any of their respective stockholders, directors,
officers or employees).
(c) Nondisclosure. The Stockholder agrees that, from and after the Purchase Date, he
shall (and shall cause his Affiliates, agents, advisors, counsel and other representatives to)
treat and hold as confidential all information concerning the businesses and affairs of the Company
or any of its Subsidiaries (including all Intellectual Property of the Company and its
Subsidiaries) (the “Confidential Information”) and, except as otherwise expressly permitted
by this Agreement, refrain from using any of the Confidential Information and, upon the request of
Parent at any time after the Purchase Date, deliver promptly to Parent or destroy all tangible
embodiments (and all copies) of the Confidential Information which are in the Stockholder’s
possession or otherwise under the Stockholder’s control. In the event that the Stockholder or any
of his Affiliates, agents, advisors, counsel or other representatives is requested or required (by
oral question or request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any Confidential Information,
the Stockholder shall notify Parent promptly of the request or requirement so that Parent may seek
an appropriate protective order or waive compliance with the provisions of this Section
8(c). If, in the absence of a protective order or the receipt of a waiver hereunder, the
Stockholder or any of his Affiliates, agents, advisors, counsel or other representatives is, on the
advice of counsel, compelled to disclose any Confidential Information to any tribunal or else stand
liable for contempt, such Person may disclose the Confidential Information to the tribunal;
provided that such Person shall use best efforts to cooperate with Parent in obtaining, at
the request and expense of Parent, an order or other assurance that confidential treatment shall be
accorded to such portion of the Confidential Information required to be disclosed as Parent shall
designate. Notwithstanding the foregoing, for purposes of this Agreement, Confidential Information
shall not include information which is or becomes generally available to the public other than as a
result of a disclosure by the Stockholder or any of his Affiliates, agents, advisors, counsel or
other representatives in violation of this Agreement.
(d) Acknowledgments. If, at the time of enforcement of the covenants contained in
this Section 8 (the “Restrictive Covenants”), a court shall hold that the duration,
scope or area restrictions stated herein are unreasonable under circumstances then existing, the
parties agree that the maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be allowed and
directed to revise the restrictions contained herein to cover the maximum period, scope and area
permitted by law. The Stockholder has consulted with legal counsel regarding the Restrictive
Covenants and based on such consultation has determined and hereby acknowledges that the
Restrictive Covenants are reasonable in terms of duration, scope and area restrictions and are
necessary to protect the goodwill of the Company’s and its Subsidiaries’ businesses and the
substantial investment in the Company made by Parent and Purchaser pursuant to the Merger
Agreement. The Stockholder further acknowledges and agrees that the Restrictive Covenants are
being entered into by him in connection with the proposed sale of Stockholder’s Shares pursuant to
the Merger Agreement and not directly or indirectly in connection with the Stockholder’s employment
or other relationship with the Company or any of its Subsidiaries.
SECTION 9. General Release. Effective as of immediately prior to the purchase of Shares by
the Purchaser or any of its Affiliates pursuant to the Offer, the Stockholder, on behalf of himself
and his successors, assigns, next-of-kin, representatives, administrators, executors, Affiliates,
stockholders, members, partners, directors, managers, officers, employees and agents, and any other
person or entity claiming by, through, or under any of the foregoing, does hereby unconditionally
and irrevocably release, waive and forever discharge each of Purchaser, Parent, the Company and
each of their respective past and present stockholders, members, partners, directors, managers,
officers, employees, agents, predecessors, successors, assigns, insurers and Affiliates
(collectively, the “Released Parties”), from any and all claims, demands, damages,
judgments, causes of action, obligations and liabilities of any nature whatsoever, whether or not
known, suspected or claimed, arising directly or indirectly from any act, omission, event or
transaction occurring (or any circumstances existing) at or prior to the Effective Time, including
without limitation, any and all of the foregoing arising out of or relating to (a) the
Stockholder’s capacity as a current or former stockholder, member, partner, director, manager,
officer, employee or agent of any of the Released Parties or any of their respective predecessors,
successors, assigns or affiliates (or the Stockholder’s capacity as a current or former
stockholder, member, partner, director, manager, officer, employee or agent of any other entity in
which capacity the Stockholder is or was serving at the request of any of the Released Parties), or
(b) any contract, agreement or other arrangement (whether verbal or written) (other than the Merger
Agreement or this Agreement) entered into or established at or prior to the Effective Time (with
the effect that any such contract, agreement or other arrangement, including any provision
purporting to survive termination of such contract, agreement or other arrangement, is hereby
terminated in its entirety effective as of the Effective Time), in all cases whether or not known,
suspected or claimed, arising directly or indirectly from any act, omission, event or transaction
occurring (or any circumstances existing) at or prior to Effective Time. The Stockholder
understands that this is a full and final general release of all claims, demands, causes of action,
obligations and liabilities of any nature whatsoever, whether or not known, suspected or claimed,
that could have been asserted in any legal or equitable proceeding against any of the Released
Parties. Notwithstanding this Section 9, each of Parent, Purchaser and the Company shall
remain liable with respect to any liabilities or obligations such Released Party has to the
Stockholder pursuant to the Merger Agreement (as to Stockholders of the Company generally) or this
Agreement.
SECTION 10. Further Assurances. The Stockholder shall, upon request of Parent or
Purchaser, execute and deliver any additional documents and take such further actions as may
reasonably be
deemed by Parent or Purchaser to be necessary or desirable to carry out the provisions of this
Agreement.
SECTION 11. Termination. The provisions of this Agreement, other than Sections 13
and 15 (each of which shall survive any termination of this Agreement), shall terminate
upon, but only upon, termination of the Merger Agreement in accordance with its terms;
provided, however, that nothing herein shall relieve any party from liability for
any pre-termination breach hereof.
SECTION 12. Waiver of Appraisal and Dissenter’s Rights. The Stockholder waives and agrees
not to exercise any rights of appraisal or rights to dissent from the Merger that the Stockholder
may have with respect to the Stockholder’s Shares.
SECTION 13. Expenses. All fees, costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
SECTION 14. Stop Transfer Order. In furtherance of this Agreement, the Stockholder hereby
authorizes the Company or its counsel to notify the Company’s transfer agent that there is a stop
transfer order with respect to all of the Stockholder’s Shares (and that this Agreement places
limits on the voting and transfer of such shares).
SECTION 15. Miscellaneous.
(a) Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in Person, by facsimile or by registered or certified mail (postage prepaid, return
receipt requested) or by a nationally recognized overnight courier service 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 15:
If to Stockholder, to:
E. Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000
with a copy, which shall not constitute notice, to:
Nevada Chemicals, Inc.
0000 Xxxxx Xxxxxx Xxxxx Xxx, Xxxxx X
Xxxxx, XX 00000
Telecopy: (000) 000-0000
0000 Xxxxx Xxxxxx Xxxxx Xxx, Xxxxx X
Xxxxx, XX 00000
Telecopy: (000) 000-0000
and
Xxxx Xxxxxxxx Xxxxx Xxx & Xxxxxxxx
Attn: Xxxxx X. Xxxxxxxx
000 Xxxxx Xxxxx Xx., Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
000 Xxxxx Xxxxx Xx., Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Parent or Purchaser, to:
Cyanco Holding Corp.
Calypso Acquisition Corp.
c/o Oaktree Capital Management, L.P.
000 X. Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Calypso Acquisition Corp.
c/o Oaktree Capital Management, L.P.
000 X. Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
with a copy, which shall not constitute notice, to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
(b) Headings; Interpretation; Construction. 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. When a reference is made in this Agreement to a Section, such reference shall be
to a Section of this Agreement unless otherwise indicated. Wherever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the
words “without limitation.” This Agreement and any documents or instruments delivered pursuant
hereto or in connection herewith shall be construed without regard to the identity of the Person
who drafted the various provisions of the same. Each and every provision of this Agreement and
such other documents and instruments shall be construed as though all of the parties participated
equally in the drafting of the same. Consequently, the parties acknowledge and agree that any rule
of construction that a document is to be construed against the drafting party shall not be
applicable to this Agreement or such other documents and instruments.
(c) Counterparts. This Agreement may be executed manually or by facsimile or
electronic mail by the parties hereto, in any number of counterparts, each of which shall be
considered one and the same agreement and shall become effective when a counterpart hereof shall
have been signed by each of the parties and delivered to the other parties.
(d) Entire Agreement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them with respect to the subject
matter hereof. This Agreement is not intended and does not confer upon any person other than the
parties hereto any rights hereunder.
(e) Governing Law. This Agreement shall be governed by and construed in accordance
with the Laws of the State of Utah, without giving effect to any choice or conflict of law
provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the
application of the Laws of any jurisdiction other than the State of Utah.
(f) Assignment. 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 except that Parent and
Purchaser may assign, in their sole discretion and without the consent of any other party, any or
all of their rights, interests and obligations hereunder to each other or to one or more direct or
indirect wholly-owned subsidiaries of Parent (each, an “Assignee”). Any such Assignee may
thereafter assign, in its sole discretion and without the consent of any other party, any or all of
its rights, interests and obligations hereunder to one or more additional Assignees. 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.
(g) Severability of Provisions. If any term or provision of this Agreement is
invalid, illegal or incapable of being enforced by 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 by this Agreement is not
affected in any manner 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 the transactions are fulfilled to the extent
possible.
(h) Specific Performance; Non-Exclusivity. The Stockholder acknowledges and agrees
that money damages will not be an adequate remedy for any breach or threatened breach of the
provisions of this Agreement and that, in such event, Parent, Purchaser and/or their respective
successors or assigns shall, in addition to any other rights and remedies existing in their favor,
be entitled to specific performance, injunctive and/or other relief from any court of competent
jurisdiction in order to enforce or prevent any violations of the provisions of this Agreement
(including the extension of the Restricted Period with respect to the Stockholder by a period equal
to the length of the court proceedings necessary to stop such violation). Any injunction shall be
available without the posting of any bond or other security. The rights and remedies of Parent and
Purchaser hereunder are not exclusive of or limited by any other rights or remedies that Parent and
Purchaser may have, whether at law, in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative).
(i) Amendment. 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.
(j) Binding Nature. This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and permitted assigns.
[signature page follows]
IN WITNESS WHEREOF, Parent, Purchaser and the Stockholder have caused this Agreement to be
duly executed and delivered as of the date first written above.
| CYANCO HOLDING CORP. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | President | |||
| CALYPSO ACQUISITION CORP. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | President | |||
| /s/ E. Xxxxx Xxxxxx
|
