STOCKHOLDERS SUPPORT AGREEMENT
This Stockholders Support Agreement (this "Agreement") is entered into as
of January 9, 2006, by CFCI Holdings, Inc., a Virginia corporation ("Parent"),
on the one hand, and each of Xxxxx X. Xxxxx, RFH Investments, LP, Xxxxx X. Xxxxx
XXX, and The Xxxxx X. Xxxxx Trust u/a/d 9/17/85 (each a "Stockholder" and
collectively the "Stockholders"), on the other hand. Each of the Stockholders is
executing this Agreement in his or its capacity as a stockholder of CFC
International, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Company, Parent and Holo Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Purchaser"), have entered
into an Agreement and Plan of Merger, dated as of January 9, 2006 (as the same
may be amended or supplemented, the "Merger Agreement"), providing for, among
other things, the merger of Company with and into Purchaser (the "Merger") under
which the Stockholders will receive substantial value for their interest in the
Company;
WHEREAS, as of the date hereof, each Stockholder beneficially owns (as such
term is defined in Rule 13d-3 of the Exchange Act) that number of shares of
Common Stock, par value $0.01 per share, of the Company (the " Common Stock") as
is set forth on Schedule 1 to this agreement (the "Subject Shares"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, and as an inducement and in consideration therefor, Parent has
requested that the Stockholders enter into this Agreement pursuant to which the
Stockholder shall, among other things, vote all of the Subject Shares in favor
of the proposal to approve and adopt the Merger Agreement and the Merger,
pursuant and subject to the terms and conditions in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Agreement to Vote.
(a) Without limiting a Stockholder's right to vote the Subject Shares in
his or its sole discretion on any unrelated matters that may be submitted to a
vote, consent or other approval (including by written consent) of the
stockholders of the Company (as long as such matters are not otherwise contrary
to the Stockholder's agreement to vote the Subject Shares in the manner set
forth in this Section 1), each Stockholder agrees that, during the term of this
Agreement, at any meeting of the stockholders of the Company, however called, or
in connection with any written consent of the stockholders of the Company, the
Stockholder shall vote (or cause to be voted) the Subject Shares (i) in favor of
the Merger, the adoption of the Merger Agreement and each other action
contemplated by the Merger Agreement and any actions required in furtherance
hereof or thereof and (ii) against the adoption of an Adverse Proposal. For
purposes of this Agreement, the term "Adverse Proposal" means (a) any Takeover
Proposal or (b) the following actions (other than the Merger and the other
Transactions contemplated by the Merger Agreement): (1) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries; (2) any sale,
lease or other similar transfer of all or substantially all of the assets of the
Company or any of its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its subsidiaries; or (3) any
other action that in any way serves to postpone, prevent, materially interfere
with or materially and adversely affect the Merger and the other Transactions.
(b) Except as set forth in the second sentence of this Section 1(b), each
Stockholder agrees that, at 5:00 p.m. Chicago, Illinois time on January 10, 2006
(the "Consent Delivery Date"), the Stockholder shall, pursuant to Article II,
Section 9 of the Bylaws, execute and deliver to the Company and Purchaser an
action by written consent in the form attached as Exhibit A to this Agreement,
approving the Merger and the adoption of the Merger Agreement and each other
action contemplated by the Merger Agreement and any actions required in
furtherance hereof or thereof, which written consent shall be irrevocable by the
Stockholder except as set forth in Section 8(d) of this Agreement.
Notwithstanding anything contained in this Section 1(b) to the contrary, if the
Consent Delivery Date would otherwise occur after a Company Notice and/or a
Change of Recommendation Notice has been delivered to Purchaser with respect to
the transactions contemplated by the Merger Agreement then in effect, then the
Consent Delivery Date shall be the date that is the seventh business day
following the date of the most recent Notice received by Purchaser.
2. Irrevocable Proxy.
(a) Grant of Proxy. Each Stockholder hereby appoints Parent and any
designee of Parent, each of them individually, such Stockholder's proxy and
attorney-in-fact during the term of this Agreement, with full power of
substitution and re-substitution, to vote or act by written consent with respect
to the Subject Shares (i) in accordance with Section 1 hereof and (ii) to sign
its name (as a stockholder) to any consent, certificate or other document
relating to the Company that the law of the State of Delaware may permit or
require in connection with any matter referred to in Section 1. This proxy is
given to secure the performance of the duties of Stockholder under this
Agreement and its existence will not be deemed to relieve Stockholder of its
obligations under Section 1. Each Stockholder affirms that this proxy is coupled
with an interest and is irrevocable until termination of this Agreement pursuant
to Section 7, whereupon such proxy and power of attorney shall automatically
terminate. Each Stockholder will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy. The
proxy granted herein is intended to comply with the requirements of Section 212
of the DGCL applicable to irrevocable proxies.
(b) Other Proxies Revoked. Each Stockholder represents that any proxy
heretofore given in respect of the Subject Shares is not irrevocable, and hereby
revokes any and all such proxies.
3. Standstill. During the term of this Agreement, each Stockholder will
not, directly or indirectly: (a) except pursuant to the terms of this Agreement
and for the conversion of Subject Shares at the Effective Time pursuant to the
terms of the Merger Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
the sale, transfer, tender, pledge, encumbrance, assignment or other disposition
of, any or all of the Subject Shares; (b) except pursuant to the terms of this
Agreement or as otherwise called for by the Merger Agreement, (i) deposit any
Subject Shares into a voting trust, (ii) grant any proxies or powers of attorney
or enter into a voting agreement with respect to any of the Subject Shares, or
(iii) enter into any other agreement or understanding with respect to the voting
of any of the Subject Shares; (c) convert or consent to the conversion of any of
the Subject Shares into any other class of capital stock or other securities of
the Company; or (d) take any action that would reasonably be expected to make
any of its representations or warranties contained herein untrue or incorrect in
any material respect or have the effect of impairing the ability of Stockholder
to perform Stockholder's obligations under this Agreement or preventing or
delaying the Merger or consummation of any of the other Transactions.
4. No Solicitation. Each Stockholder shall, and shall cause each agent and
representative (including without limitation any investment banker, financial
advisor, attorney, accountant or other representative retained by the
Stockholder or any such representative) (each, a "Stockholder Representative")
of the Stockholder to, immediately cease any discussions or negotiations with
any other parties conducted heretofore (other than Parent and the Purchaser)
with respect to any Takeover Proposal. Each Stockholder shall not, nor shall it
permit his or its Stockholder Representatives to, directly or indirectly through
another person, (i) solicit, initiate or encourage (including by way of
furnishing non-public information), or take any other action to facilitate, any
inquiries or the making of any proposal that constitutes a Takeover Proposal or
(ii) solicit, initiate, encourage, facilitate or otherwise participate in any
discussions or negotiations regarding, or otherwise cooperate in any way with,
any Takeover Proposal. Without limiting the foregoing, it is agreed that any
violation of the foregoing by the Stockholders or any Stockholder Representative
shall be a violation of Section 5.02 of the Merger Agreement by the Company.
5. No Limitations on Stockholder's Action as a Director. Xxxxx X. Xxxxx
does not make any agreement or understanding herein in his capacity as a
director or officer of the Company. Xxxxx X. Xxxxx executes this Agreement
solely in his capacity as a stockholder of the Company and nothing herein shall
limit or affect any actions taken by him in his capacity as an officer or
director of the Company or any of its Subsidiaries, including, without
limitation, all actions take by him in accordance with his fiduciary duties as
an officer or director of the Company or otherwise as permitted by the Merger
Agreement.
6. Representations and Warranties of Stockholder. Each Stockholder hereby
represents and warrants to Parent as follows:
(a) Ownership. Stockholder is the record and beneficial owner of, and has
good and valid title to, his or its Subject Shares, free and clear of any liens.
Except for his or its Subject Shares, Stockholder does not beneficially own any
securities of the Company on the date hereof, and does not, directly or
indirectly, beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their terms become
entitled to vote or any securities that are convertible or exchangeable into or
exercisable for any securities of the Company that are or may by their terms
become entitled to vote; provided that Xxxxx Xxxxx (i) may be deemed to be the
beneficial owner of all Subject Shares and (ii) holds an option to purchase 534
shares of the Company's voting preferred stock, par value $0.01 per share
("Voting Preferred Stock") at an exercise price of $500 per share ("Preferred
Stock Option").
(b) Organization, Authority. Stockholder has all requisite power and
authority to enter into 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) Execution and Delivery. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder enforceable against the Stockholder in accordance with its
terms, except that enforceability may be limited by bankruptcy, reorganization,
insolvency or other laws affecting the enforceability of creditors' rights
generally.
(d) No Conflicts. Subject to compliance with the HSR Act and appropriate
filings under securities laws (which the Stockholder agrees to make promptly),
to the extent applicable, the execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby and compliance with
the provisions hereof will not, conflict with, result in a violation or breach
of, or constitute a default (or an event that, with notice or lapse of time or
both, would result in a default) or give rise to any right of termination,
amendment, cancellation, notice or acceleration under, (i) with respect to RFH
Investments, LP, the Stockholder's certificate of limited partnership and other
constituent documents, (ii), with respect to The Xxxxx X. Xxxxx Trust u/a/d
9/17/85, the trust agreement governing the Stockholder, (iii) with respect to
the Xxxxx Xxxxx XXX, the custodial agreement governing the Stockholder, and (iv)
any loan or credit agreement, bond, note, mortgage, indenture, lease or any
other contract, agreement, or instrument to which the Stockholder is a party or
by which the Stockholder or any of his or its Subject Shares is bound, or (v)
any injunction, judgment, writ, decree, order or ruling applicable to the
Stockholder; except in the case of clauses (iv) and (v) for conflicts,
violations, breaches or defaults that could not reasonably be expected to
prevent, impair, impede or delay the timely performance by the Stockholder of
his or its obligations under this Agreement.
(e) Reliance. Each Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's execution,
delivery and performance under this Agreement.
7. Representations and Warranties of Parent. Parent hereby represents and
warrants to the Stockholders as follows:
(a) Organization, Authority. Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State of Virginia.
Parent has all the requisite power and authority to enter into 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) Execution and Delivery. This Agreement has been duly executed and
delivered by Parent and constitutes a valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except that
enforceability may be limited by bankruptcy, reorganization, insolvency or other
laws affecting the enforceability of creditors' rights generally.
(c) No Conflicts. Neither the execution and delivery of this Agreement nor
the performance by Parent of its obligations hereunder will result in a
violation or breach of, or constitute a default (or an event that, with notice
or lapse of time or both, would result in a default) or give rise to any right
of termination, amendment, cancellation, or acceleration under, (i) Parent's
limited liability company agreement or similar constituent documents, (ii) any
contract, obligation, commitment, agreement, restriction, understanding, or
instrument to which Parent is a party or by which Parent is bound, (iii) any
injunction, judgment, writ, decree, order or ruling applicable to Parent, or
(iv) subject to the filing of any reports under Sections 13(d) and 16 of the
Exchange Act as may be required in connection with this Agreement or the Merger
Agreement and the transactions contemplated hereby and thereby, any law,
statute, rule or regulation applicable to Parent; except in the case of clauses
(ii), (iii) and (iv) for violations, breaches or defaults that could not
reasonably be expected to prevent, impair, impede or delay the timely
performance by Parent of its obligations under this Agreement.
8. Termination. This Agreement shall terminate, and the provisions hereof
shall be of no further force or effect, upon the earlier of:
(a) the Effective Time,
(b) the date upon which the Merger Agreement is validly terminated in
accordance with its terms,
(c) a Change of Recommendation by the Company Board in accordance with
Section 5.02(d) of the Merger Agreement,
(d) the delivery of written notice by Parent to the Stockholders of the
termination of this Agreement; or
(e) the date that Parent reduces, or proposes to the Company Board to
reduce, the Merger Consideration or indicates to the Company Board that it
wishes to reduce or discuss the reduction of the Merger Consideration.
Following the termination of this Agreement, as between Parent and each
Stockholder, the Stockholder shall have the right in its sole and absolute
discretion to (i) vote the Subject Shares in any manner it so chooses, (ii)
deliver one or more voting proxies to one or more Persons with respect to the
Subject Shares, (iii) dispose of all or any portion of the Subject Shares to one
or more Persons in any manner Stockholder so selects and (iv) take any other
action it may choose to take with respect to the Subject Shares. The provisions
of the immediately preceding sentence shall apply whether or not the Board of
Directors has received a Takeover Proposal, has terminated the Merger Agreement
or is considering the termination of the Merger Agreement, and shall be solely
linked to the reduction or any proposed reduction of the Merger Consideration by
Parent. If this Agreement terminates pursuant to this Section 8, then any
written consent delivered by the Stockholders hereunder pursuant to the terms of
Section 1(b) above, shall terminate and be deemed null and void, ab initio.
9. Miscellaneous.
(a) Adjustments. In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Subject Shares
or the like or any other action that would have the effect of changing the
Stockholder's ownership of the Subject Shares or (ii) the Stockholder becomes
the beneficial owner of any additional shares of Common Stock or of any Voting
Preferred Stock pursuant to the Preferred Stock Option or otherwise, then the
terms of this Agreement will apply to all of the shares Common Stock and Voting
Preferred Stock held by the Stockholder immediately following the effectiveness
of the events described in clause (i) or the Stockholder becoming the beneficial
owner thereof, as described in clause (ii), as though they were Subject Shares
hereunder. Each Stockholder hereby agrees, while this Agreement is in effect, to
promptly notify Parent of the number of any new shares of Common Stock and
Voting Preferred Stock acquired by the Stockholder, if any, after the date
hereof.
(b) Waiver of Dissenter's Rights. Each Stockholder hereby consents to and
approves the actions taken by the Board of Directors of the Company in approving
the Merger Agreement and this Agreement, the Merger and the other transactions
contemplated by the Merger Agreement. Each Stockholder hereby waives, and agrees
not to exercise or assert, any appraisal or similar rights under Section 262 of
the DGCL or other applicable law in connection with the Merger.
(c) Publication. Each Stockholder hereby permits Parent to publish and
disclose in all documents and schedules filed with the SEC or The NASDAQ Stock
Market his or its identity and ownership of the Subject Shares and the nature of
his or its commitments, arrangements and understandings pursuant to this
Agreement; provided, however, that such publication and disclosure shall be
subject to the prior review and comment by the Stockholder and his or its
advisors. Except as provided above, no party shall issue any press release or
make any other public statement with respect to this Agreement, the Merger
Agreement, the Merger or any other transactions contemplated by this Agreement,
the Merger Agreement or the Merger without the prior written consent of the
other parties, except as may be required by applicable law.
(d) Further Actions. Each of the parties hereto agrees that it will execute
and deliver such other documents and instruments and to take such further
actions as from time to time may be necessary or appropriate to effectuate this
Agreement.
(e) Notices. All notices or other communications given or made pursuant
hereto shall be in writing (including facsimile or similar writing) and shall be
deemed to have been duly given or made as of the date of receipt and shall be
delivered personally or mailed by registered or certified mail (postage prepaid,
return receipt requested), sent by overnight courier or sent by facsimile (but
only if the appropriate facsimile transmission confirmation is received), to the
applicable party at the following addresses or facsimile numbers, or at such
other address or facsimile number for a party as shall be specified by like
notice:
If to Stockholders:
Xxxxx X. Xxxxx
c/o CFC International, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
With copy to:
Holland & Knight LLP
0 Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
If to Parent:
CFCI Holdings, Inc
c/o Quad-C Management, Inc
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: 434-979-1145
with a copy to:
McGuireWoods LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: 000-000-0000
(f) Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, in whole or in part (whether by operation of Law or otherwise),
without the prior written consent of the other party. Any attempt to make any
such assignment without such consent shall be null and void. Subject to the
preceding sentences, this Agreement shall be binding upon, inure to the benefit
of and be enforceable by, the parties, their respective successors and permitted
assigns.
(g) Third Party Beneficiaries. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to or shall confer on any person other than the parties hereto or their
respective permitted successors and assigns any rights, benefits, remedies,
obligations or liabilities whatsoever under or by reason of this Agreement.
(h) Entire Agreement. This Agreement and the Merger Agreement constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, either written or oral,
among the parties, or any of them, with respect thereto.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware without regard to its rules of
conflicts of Laws. Stockholders and Parent hereby irrevocably and
unconditionally: (i) consent to submit to the exclusive jurisdiction of the
courts of the State of Delaware (the "Delaware Courts") for any litigation
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agree not to commence any litigation relating thereto except in such
courts), (ii) waive any objection to the laying of venue of any such litigation
in the Delaware Courts and (iii) agree not to plead or claim in any Delaware
Court that such litigation brought therein has been brought in an inconvenient
forum.
(j) Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY TO THE FULLEST EXTENT
PERMITTED BY LAW.
(k) Headings. The descriptive headings contained herein are for convenience
and reference only and will not affect in any way the meaning or interpretation
of this Agreement.
(l) Waivers. Any agreement on the part of a party to waive any provision of
this Agreement, or to extend the time for any performance hereunder, will be
valid only if set forth in an instrument in writing signed on behalf of such
party. No action taken pursuant to this Agreement, including without limitation,
any investigation by or on behalf of any party, nor any failure or delay on the
part of any party hereto in the exercise of any right hereunder, shall be deemed
to constitute a waiver by the party taking such action of compliance of any
representations, warranties, covenants or agreements contained in this
Agreement. The waiver by any party hereto of a breach of any provision hereunder
shall not operate or be construed as a waiver of any prior or subsequent breach
of the same or any other provision hereunder.
(m) Severability. Any term or provision of this Agreement that is invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only as broad as is enforceable.
(n) Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any Delaware Court, this being
in addition to any other remedy to which they are entitled at law or in equity.
(o) Voidability. If prior to the execution hereof, the board of directors
of the Company shall not have duly and validly authorized and approved by all
necessary corporate action this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby, so that by the execution and
delivery hereof Parent or Purchaser would become, or could reasonably be
expected to become an "interested stockholder" with whom the Company would be
prevented for any period pursuant to Section 203 of the General Corporation Law
of the State of Delaware (the "DGCL") from engaging in any "business
combination" (as such terms are defined in Section 203 of the DGCL), then this
Agreement shall be void and unenforceable until such time as such authorization
and approval shall have been duly and validly obtained.
(p) Remedies Not Exclusive. 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 either
party will not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(q) Amendment. This Agreement may not be amended except by an instrument in
writing signed by each of the parties hereto.
(r) Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
(s) Defined Terms. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed to them in the Merger
Agreement.
[SIGNATURE PAGE TO FOLLOW]
Stockholders: /s/Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
RFH Investments, LP
/s/Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx, Managing General Partner
Xxxxx X. Xxxxx XXX
By:/s/Xxxxx X. Xxxxx
----------------------------------
Authorized Signatory
The Xxxxx X. Xxxxx Trust
Under Agreement Dated 9/17/85
By:/s/Xxxxx X. Xxxxx
----------------------------------
Authorized Signatory
Parent: CFCI Holdings, Inc.
By:/s/Xxxxxxx X. Xxxxx
----------------------------------
Its: President
SUBJECT SHARES
Name of Stockholder Shares of Common Stock Owned
------------------- ----------------------------
Xxxxx X. Xxxxx 471,200 (1)
RFH Investments, LP 1,137,958
Xxxxx X. Xxxxx XXX 5,328
Xxxxx X. Xxxxx Trust u/a/d 9/17/85 749,863
Total 2,364,349
--------------
(1)Includes shares held by Xxxxxx X. Xxxxxx (314,133 shares) and the Xxxxxxx
Xxxxxxx Xxxxx'x GST Trust (157,067 shares) with respect to which Xxxxx X. Xxxxx
holds an irrevocable proxy.
ACTION BY WRITTEN CONSENT OF STOCKHOLDERS OF
CFC INTERNATIONAL, INC.
Pursuant to the provisions of Section 228 and Section 251 of the General
Corporation Law of the State of Delaware, the undersigned stockholders each
holding and having voting power over that number of shares of common stock, par
value $0.01 per share (the " Common Stock"), of CFC International, Inc., a
Delaware corporation (the "Company") set forth adjacent to its name below,
collectively constituting a majority of the voting power of the issued and
outstanding Common Stock, do hereby consent to, approve and adopt the following
resolution:
WHEREAS, contemporaneously with this resolution, the Board of Directors of
the Company has determined that the merger (the "Merger") of Holo Acquisition
Corp., a Delaware corporation ("Merger Sub"), with and into the Company is fair
and advisable and in the best interest of the Company and its stockholders, has
approved and adopted the Agreement and Plan of Merger, dated as of January 9,
2006, among CFCI Holdings, Inc., a Virginia corporation ("Parent"), Merger Sub
and the Company in the form attached to this consent (the "Merger Agreement")
and the Merger, and has submitted the Merger Agreement to, and recommended the
approval and adoption of the Merger Agreement and the Merger by, the
stockholders of the Company.
WHEREAS, the affirmative vote in favor of the adoption of the Merger
Agreement by a majority of the votes entitled to be cast thereon by the
stockholders of the Company is required pursuant to Section 251 of the DGCL
before the Company may effect the Merger.
WHEREAS, the undersigned stockholders are the record owners of shares of
the capital stock of the Company representing a majority of the votes entitled
to be cast on the adoption of the Merger Agreement;
WHEREAS, Parent has requested that the undersigned stockholders, in their
capacity as stockholders of the Company, adopt the Merger Agreement and approve
the transactions contemplated by the Merger Agreement, including, without
limitation, the Merger.
NOW, THEREFORE, BE IT RESOLVED, that, the undersigned stockholders in their
capacity as stockholders of the Company, hereby adopt the Merger Agreement
within the meaning of Section 251 of the DGCL and approve the transactions
contemplated by the Merger Agreement, including, without limitation, the Merger.
NOW, THEREFORE, BE IT RESOLVED, that the Merger Agreement and the Merger
be, and they hereby are, consented to, approved and adopted in all respects.
This Consent may be executed in one or more counterparts, all of which
shall be considered one and the same instrument.
Date:________________
_______________________ 471,200 shares Common Stock(1)
Xxxxx X. Xxxxx
RFH Investments, LP
By: _______________________ 1,137,958 shares Common Stock
Xxxxx X. Xxxxx,
Managing General Partner
Xxxxx X. Xxxxx XXX
By: _______________________ 5,328 shares Common Stock
Authorized Signatory
The Xxxxx X. Xxxxx Trust
u/a/d 9/17/85
By: _______________________ 749,863 shares Common Stock
Authorized Signatory
--------------
(1)Includes shares held by Xxxxxx X. Xxxxxx (314,133 shares) and the Xxxxxxx
Xxxxxxx Xxxxx'x GST Trust (157,067 shares) with respect to which Xxxxx X. Xxxxx
holds an irrevocable proxy.
