TENDER AND VOTING AGREEMENT
Exhibit (d)(5)
This
Tender and Voting Agreement, dated as of February 1, 2011 (this “Agreement”), is by and
among WONDER HOLDINGS ACQUISITION CORP., a Delaware corporation (“Parent”), WONDER HOLDINGS, INC.,
a Delaware corporation (“Merger Sub”), and the stockholder of Matrixx Initiatives, Inc., a Delaware
corporation (the “Company”), set forth on the signature page hereto (the “Stockholder”).
Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in
the Merger Agreement.
ARTICLE 1
1.01 Certain Definitions.
(a) “Company Common Stock” means the common stock of the Company, including the associated
rights issued pursuant to the Rights Agreement, dated as of July 22, 2002, between Matrixx and
Registrar and Transfer Company, as such agreement may be amended from time to time.
(b) “Merger Agreement” means the Agreement and Plan of Merger, dated as of December 14, 2010,
among the Company, Merger Sub and Parent, as it may be amended from time to time.
(c) “Shares” means all shares of Company Common Stock owned beneficially or otherwise by the
Stockholder or its affiliates, including any shares of Company Common Stock or other equity
interests in the Company that are hereafter issued to or otherwise acquired or owned (beneficially
or otherwise) by the Stockholder or its affiliates prior to the termination of the Agreement.
1.02 Representations and Warranties of the Stockholder. The Stockholder represents
and warrants to Parent and Merger Sub as follows:
(a) The Stockholder or one or more of its affiliates is the sole beneficial owner (as defined
in Rule 13d-3 under the Exchange Act) of, and has good title to, the Shares, free and clear of any
Liens (including any restriction on the right to vote, sell or otherwise dispose of the Shares),
except as set forth in this Agreement and pursuant to any applicable restrictions on transfer under
the Securities Act.
(b) The Shares constitute all of the securities (as defined in Section 3(a)(10) of the
Exchange Act, which definition will apply to all uses of the term “securities” contained in this
Agreement) of the Company beneficially owned, directly or indirectly, by the Stockholder and any of
the Stockholder’s affiliates or associates (as such terms are defined in Rule 12b-2 under the
Exchange Act, which definitions will apply to all uses of the terms “affiliates” and “associates,”
respectively, contained in this Agreement).
(c) The Stockholder has the legal capacity to execute, deliver and perform the Stockholder’s
obligations under this Agreement. The Stockholder has duly executed and delivered this Agreement.
This Agreement is the Stockholder’s valid and legally binding obligation, enforceable against the
Stockholder in accordance with its terms.
(d) No consents or approvals of, or registrations with, any Governmental Entity or with any
third party are required to be made or obtained by the Stockholder in connection with the
execution, delivery or performance by the Stockholder of this Agreement.
(e) The execution, delivery and performance of this Agreement by the Stockholder does not and
will not constitute a violation of any Law or any judgment, decree or order, or conflict with any
contract, agreement or other obligation, to which the Stockholder or any of the Stockholder’s
properties (or its affiliates thereof) is subject or bound.
1.03 Representations and Warranties of Parent and Merger Sub. Parent and Merger Sub
represent and warrant to the Stockholder as follows:
(a) Each of Parent and Merger Sub has the corporate power and authority to execute, deliver
and perform its obligations under this Agreement. Each of Parent and Merger Sub has duly
authorized, executed and delivered this Agreement. This Agreement has been duly authorized by all
necessary corporate action of each of Parent and Merger Sub. This Agreement is each of Parent’s
and Merger Sub’s valid and legally binding obligation, enforceable against each of them in
accordance with its terms.
(b) No consent or approval of, or registration with, any Governmental Entity or with any third
party are required to be made or obtained by either Parent or Merger Sub in connection with the
execution, delivery or performance by Parent and Merger Sub of this Agreement.
(c) The execution, delivery and performance of this Agreement by Parent and Merger Sub does
not and will not constitute (i) a violation of any Law or any judgment, decree or order to which
Parent or Merger Sub or any of their properties is subject or bound or (ii) a breach or violation
of, or a default under, the Certificate of Incorporation or By-laws of Parent or the Certificate of
Incorporation or By-laws of Merger Sub.
ARTICLE 2
2.01 Transfer of the Shares. During the term of this Agreement, the Stockholder will
(and shall cause its affiliates to) not (a) tender into any tender or exchange offer or otherwise
directly or indirectly sell, transfer, pledge, assign or otherwise dispose of, or encumber with any
Lien, any of the Shares or any interest therein, (b) deposit the Shares into a voting trust, enter
into any other voting agreement or arrangement with respect to the Shares or grant any proxy or
power of attorney with respect to the Shares, (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect acquisition or sale, transfer,
pledge, assignment or other disposition of any interest in or the voting of any shares of Company
Common Stock or any other securities of the Company or (d) take any other action that would make
any representation or warranty of the 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 the Stockholder’s obligations hereunder or the transactions contemplated by the
Merger Agreement. Any attempted sale, transfer, pledge, assignment or other disposition of any
Shares or any interest therein in violation of this Section 2.01 shall be null and void ab initio.
ARTICLE 3
3.01 Tender of Shares. The Stockholder will validly tender (or cause the record owner
of such Shares to validly tender) into the Offer (and not withdraw) and sell, pursuant to and in
accordance with the terms of the Offer and the Offer Documents, the Shares not later than the
second Business Day after the date hereof, or with respect to any Shares acquired after such date,
prior to the expiration of the Offer.
3.02 Voting. The Stockholder hereby agrees that at any meeting of the stockholders of
the company, however called, it shall vote (and shall cause its affiliates to vote) all Shares
owned in favor of the Merger and against any actual or proposed action that would impede, interfere
with, delay, postpone,
or adversely affect the Merger, the Offer or any other transaction contemplated by or in
connection with the Merger Agreement.
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3.03 Waiver of Appraisal and Dissenters’ Rights and Actions. The Stockholder hereby
(a) waives and agrees not to exercise, and to cause all affiliates of the Stockholder to waive and
not exercise, any rights of appraisal or rights to dissent from the Merger that the Stockholder or
an affiliate thereof may have and (b) agrees not to commence or join in (and agrees to cause its
affiliates not to commence or join in), and agrees to take (and to cause its affiliates to take)
all actions necessary to opt out of any class in any class action with respect to, any claim, suit,
action or proceeding, derivative or otherwise, against Parent, Merger Sub, the Company or any of
their respective successors relating to this Agreement or the Merger Agreement or the consummation
of the Offer or the Merger.
3.04 Conditions to Agreements. The rights and obligations of the parties under this
Agreement shall be subject to the conditions that Parent and Merger Sub shall have amended the
terms of the Offer such that the Offer Price is at least $8.75 per share of Company Common Stock.
ARTICLE 4
4.01 Termination. This Agreement will automatically terminate upon the earliest to
occur of (a) the purchase of all of the Shares pursuant to the Offer in accordance with Section
3.01, (b) the Effective Time, (c) the date the Merger Agreement is terminated in accordance with
its terms, and (d) the mutual consent of the Stockholder and Parent; provided, that nothing
herein shall relieve any party hereto from liability for any breach of this Agreement and this
Section 4.01 and Section 4.03 shall survive any termination of this Agreement.
4.02 Further Assurances. Subject to the terms and conditions of this Agreement, each
of the parties hereto agrees to use its 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. Each party hereto will
execute and deliver all such further instruments, documents and agreements and take all such
further action as may be necessary or desirable in order to consummate the transactions
contemplated hereby.
4.03 Miscellaneous.
(a) In furtherance of this Agreement, the Stockholder, on behalf of itself and its affiliates,
hereby authorizes and instructs the Company (including through the Company’s transfer agent) to
enter a stop transfer order at and upon the direction of Parent with respect to all of the Shares.
(b) Any provision of this Agreement may be (i) waived by the party benefited by the provision,
but only in writing, or (ii) amended or modified at any time, but only by a written agreement
executed in the same manner as this Agreement. This Agreement constitutes the final, exclusive and
entire agreement and supersedes all prior agreements and understandings, both written and oral,
among the parties hereto with respect to the subject matter of this Agreement.
(c) This Agreement shall be governed by the Laws of the State of Delaware, regardless of the
Laws that might otherwise govern. Each of the parties hereto irrevocably and unconditionally
submits to the exclusive jurisdiction of the Delaware Court of Chancery (and if jurisdiction in the
Delaware Court of Chancery shall be unavailable, the Federal court of the United States of America
sitting in the State of Delaware) for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated by this Agreement (and agrees that no such
action, suit or proceeding relating to this Agreement shall be brought except in such courts).
Each of the
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parties further agrees that service of any process, summons, notice or document by U.S.
registered mail to such Person’s respective address set forth below shall be effective service of
process with respect to any matters to which it has submitted to jurisdiction as set forth above in
the immediately preceding sentence. Each of the parties hereto irrevocably and unconditionally
waives (and agrees not to plead or claim) any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated by this Agreement in
the Delaware Court of Chancery (and if the Delaware Court of Chancery shall be unavailable, in any
Delaware State court or the Federal court of the United States of America sitting in the State of
Delaware) or that any such action, suit or proceeding brought in any such court has been brought in
an inconvenient forum.
(d) Each party hereto hereby waives, to the fullest extent permitted by applicable Law, any
right it may have to a trial by jury in respect of any suit, action or other proceeding directly or
indirectly arising out of, under or in connection with this Agreement. This Agreement may be
executed in one or more counterparts (including by facsimile or pdf), all of which shall be
considered one and the same agreement and shall become effective when one or more such counterparts
have been signed by each of the parties and delivered to the other parties. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part,
by any of the parties without the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
(e) 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 hereto 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, this being in addition to any other remedy to which they
are entitled at Law or in equity. Each party agrees that it will not oppose the granting of an
injunction or other equitable relief on the basis that the party seeking such injunction or other
equitable relief has an adequate remedy at law or that any award of specific performance is not an
appropriate remedy for any reason at law or equity. In the event that any party seeks an
injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the
terms and provisions of this Agreement, such party shall not be required to provide any bond or
other security in connection with any such injunction or other Judgment. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
will be cumulative and not alternative, and the exercise of any thereof by any party will not
preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
If any provision of this Agreement or the application of any such provision to any Person or
circumstance shall be held invalid, illegal or unenforceable in any respect such invalidity,
illegality or unenforceability shall not affect any other provision hereof.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first
above written.
| WONDER HOLDINGS ACQUISITION CORP. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Secretary | |||
| WONDER HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Secretary | |||
| STOCKHOLDER BML Investment Partners, L.P. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Manager
of BML Capital Management, LLC as Manager of BML Investment Partners, L.P. |
|||
| Number of Shares: | 935,000 |
|
Address:
00
X Xxxxx – Xxxxx 0
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
