Exhibit (d)(2)
Execution Copy
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STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of July 9, 2001, among Broder Bros.,
Co., a Michigan corporation ("Buyer"), FLD Acquisition Corp., a Georgia
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corporation and a wholly owned subsidiary of Buyer ("Merger Subsidiary"), and
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the stockholders of Full Line Distributors, Inc., a Georgia corporation (the
"Company"), who are listed on and execute the signature pages attached hereto
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(each a "Stockholder" and, collectively, the "Stockholders"). Capitalized
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terms used herein and not otherwise defined shall have the meanings assigned to
them in the Merger Agreement (as defined below).
R E C I T A L S
WHEREAS, Buyer, Merger Subsidiary and the Company propose to enter
into an Agreement and Plan of Merger (as the same may be amended or
supplemented, the "Merger Agreement") providing for, among other things: (i)
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the making of a cash tender offer (as such offer may be amended from time to
time as permitted under the Merger Agreement, the "Offer") by Merger Subsidiary
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for all the outstanding shares (the "Shares") of common stock, no par value, of
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the Company (the "Common Stock") and (ii) the merger of Merger Subsidiary with
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and into the Company (the "Merger"), upon the terms and subject to the
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conditions set forth in the Merger Agreement;
WHEREAS, each Stockholder is the record owner of the number of shares
of Common Stock set forth on his, her or its signature page attached hereto
(such shares of Common Stock, together with any other shares of capital stock of
the Company acquired by such Stockholder after the date hereof and during the
term of this Agreement (including through the exercise of any stock options,
warrants or similar instruments), being collectively referred to herein as the
"Subject Shares" of such Stockholder); and
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WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Buyer and Merger Subsidiary have requested that each Stockholder
enter into this Agreement.
AGREEMENTS
NOW, THEREFORE, to induce Buyer and Merger Subsidiary to enter into,
and in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Agreement to Tender.
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(a) Each Stockholder hereby agrees severally (and not jointly) to
accept the Offer with respect to all of the Subject Shares of the Stockholder
and to tender (or cause the record owner of such Shares to tender) all of his,
her or its Subject Shares into the Offer. Such tender shall be made within 10
business days following the date hereof and shall not be withdrawn. Subject to
Section 9 below, (i) the obligation of any Stockholder to tender and not
withdraw his, her or its Subject Shares is conditioned only upon lawful
commencement of the Offer and otherwise is unconditional and (ii) immediately
following the purchase of any Shares in the Offer, Merger Subsidiary shall
purchase all Subject Shares not purchased in the Offer, if any.
(b) Notwithstanding the foregoing, no Stockholder shall be required
to tender his, her or its Subject Shares, not withdraw his, her or its Subject
Shares or otherwise sell his, her or its Subject Shares in accordance with the
terms of this Agreement in the event that, without the prior written consent of
such Stockholder, any of the following has occurred: (i) a decrease in the Offer
Price or change in the form of consideration payable in the Offer, (ii) a
decrease in the number of Shares sought in the Offer, (iii) an amendment or
waiver of the Minimum Condition, (iv) the imposition of additional conditions to
the Offer or amendment to any condition to the Offer that is adverse in any
material respect to the holders of the Shares, (v) an amendment of any other
term of the Offer in any manner adverse in any material respect to the holders
of Shares or (vi) an extension of the expiration date of the Offer which
requires the consent of the Company under the Merger Agreement.
(c) Merger Subsidiary shall be entitled to deduct and withhold from
the consideration otherwise payable pursuant to this Agreement such amounts as
may be required to be deducted and withheld with respect to the making of such
payment under the Internal Revenue Code of 1986, as amended, or under any
provision of state, local or foreign tax law.
(d) Each of the Stockholders hereby permits Buyer and Merger
Subsidiary to publish and disclose in the Offer Documents (as such term is
defined in Section 1.01(c) of the Merger Agreement) his, her or its identity and
ownership of Subject Shares and the nature of his, her or its commitments,
arrangements and understandings under this Agreement.
2. Representations and Warranties of Each Stockholder. Each
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Stockholder hereby, severally and not jointly, represents and warrants to Buyer
and Merger Subsidiary as of the date hereof, in respect of himself, herself or
itself as follows (except as to those matters set forth immediately following
such Stockholder's signature):
(a) Authority. Such Stockholder has all requisite power and authority
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to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by such Stockholder, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of such
Stockholder. This Agreement has been duly executed and delivered by such
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Stockholder and, assuming due authorization, execution and delivery by Buyer and
Merger Subsidiary, constitutes a valid and binding obligation of such
Stockholder enforceable against such Stockholder in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium, or similar law affecting creditors' rights generally and subject, as
to enforceability, to the effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) No Conflicts. Except for (i) the applicable requirements of the
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Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
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Securities Act of 1933, as amended (the "Securities Act") and (ii) the
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applicable requirements of state securities laws, takeover laws or Blue Sky
laws, the execution and delivery of this Agreement do not, and the consummation
by such Stockholder of the transactions contemplated hereby and compliance with
the terms hereof will not, (A) conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, or give rise to
a right of termination, cancellation or acceleration of any obligation or to
loss of a material benefit under, or to increased, additional, accelerated or
guaranteed rights or entitlements of any person under, or result in the creation
of any lien upon any of the properties or assets of such Stockholder under any
provision of, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, or instrument, applicable to such
Stockholder or to the property or assets of such Stockholder or (B) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to such
Stockholder or any of the properties or assets of such Stockholder, including
the Subject Shares, except for such conflicts, violations, breaches, defaults or
other occurrences which, individually or the aggregate, have not had and would
not reasonably be expected to prevent or materially delay the ability of the
Stockholder to perform its obligations under this Agreement (a "Stockholder
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Material Adverse Effect").
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(c) No Consents. The execution and delivery of this Agreement by such
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Stockholder does not, and neither the performance of this Agreement by such
Stockholder nor the consummation of the transactions contemplated hereby by such
Stockholder will, require any consent, approval, authorization, order or permit
of, or filing with or notification to, any Federal, state, local or foreign
government or any court of competent jurisdiction, or other governmental,
administrative or regulatory authority, commission or agency, domestic or
foreign (each a "Governmental Entity"), except for (i) the applicable
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requirements of the Exchange Act and the Securities Act, (ii) the applicable
requirements of state securities laws, takeover laws or Blue Sky laws, (iii) in
the case of Xxxxxx Xxxxxxx, the consent of Xxxxx X. Xxxxxx, which consent has
been obtained prior to the date hereof, and (iv) such other consents, approvals,
authorizations or permits, filings or notifications, not obtained or made prior
to the date hereof, the failure of which to be obtained or made would not
prevent or delay consummation of the transactions contemplated hereby, or
otherwise prevent such Stockholder from performing its obligations under this
Agreement in any material respect, and which, individually or in the aggregate,
have not had and would not reasonably be expected to have a Stockholder Material
Adverse Effect. If such Stockholder is married and the Subject Shares of such
Stockholder constitute community property or otherwise need spousal or other
approval to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and, assuming due authorization,
execution and delivery by Buyer and Merger
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Subsidiary and the Stockholder, constitutes a valid and binding agreement of,
such Stockholder's spouse enforceable against such spouse in accordance with its
terms, subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium, or similar law affecting creditors' rights generally and
subject, as to enforceability, to the effect of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). No trust of which such Stockholder is a trustee requires the
consent of any beneficiary to the execution and delivery of this Agreement or to
be the consummation of the transactions contemplated hereby.
(d) The Subject Shares. Such Stockholder is the record and beneficial
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owner of, or is the trustee that is the record holder of, and whose
beneficiaries are the beneficial owners of, and has good and valid title to, the
Subject Shares set forth on his, her or its signature page attached hereto, free
and clear of any claims, liens, encumbrances, security interests, options,
charges and restrictions of any kind (other than restrictions pursuant to
applicable securities laws or such claims, liens, encumbrances, security
interests, options, charges and restrictions otherwise disclosed on such
Stockholder's signature page hereto). Except as otherwise set forth on his, her
or its signature page attached hereto, such Stockholder does not own, of record
or beneficially, any shares of capital stock of the Company other than the
Subject Shares set forth on the signature pages attached hereto. Such
Stockholder has the sole right to vote such Subject Shares, and none of such
Subject Shares are subject to any voting trust or other agreement, arrangement
or restriction with respect to the voting of such Subject Shares.
(e) No Brokers. Except for CoView Capital, Inc., whose fees are
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payable by the Company, there is no investment banker, broker, finder or other
intermediary (other than legal and accounting advisors) which have been retained
by or is authorized to act on behalf of a Stockholder who might be entitled to
any fee or commission from the Stockholder or any of his, her or its affiliates
upon consummation of the transactions contemplated by this Agreement.
3. Representations and Warranties of Buyer and Merger Subsidiary.
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Buyer and Merger Subsidiary hereby, jointly and severally, represent and warrant
to each of the Stockholders as of the date hereof as follows:
(a) Authority. Buyer and Merger Subsidiary have all necessary power
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and authority to execute and deliver the Merger Agreement and this Agreement and
to consummate the transactions contemplated thereby and hereby. The execution
and delivery of the Merger Agreement and this Agreement by each of Buyer and
Merger Subsidiary, and the consummation of the transactions contemplated thereby
and hereby, have been duly authorized by all necessary corporate action and no
other corporate proceedings on the part of each of Buyer and Merger Subsidiary
are necessary to authorize this Agreement, the Merger Agreement or to consummate
the transactions contemplated hereby or thereby (other than with respect to the
Merger, the filing of the appropriate merger documents with the Secretary of
State of the State of Georgia as required by the Georgia Business Corporation
Code ("Georgia Code")). The Merger Agreement and this Agreement each has been
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duly and validly executed and delivered by Buyer and Merger Subsidiary and
approved by Buyer as the sole stockholder of Merger Subsidiary, and, assuming
due authorization, execution and
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delivery by the Company and each Stockholder, respectively, constitutes a legal,
valid and binding obligation of Buyer and Merger Subsidiary enforceable against
Buyer and Merger Subsidiary in accordance with its terms, subject to the effect
of any applicable bankruptcy, reorganization, insolvency, moratorium, or similar
law affecting creditors' rights generally and subject, as to enforceability, to
the effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) No Conflicts. The execution and delivery of the Merger Agreement
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and this Agreement by Buyer and Merger Subsidiary do not, and the consummation
of the Offer, the Merger and the other Transactions (including this Agreement)
and compliance with the terms thereof and hereof will not, (i) conflict with or
violate the articles of incorporation or by-laws or equivalent organizational
documents of Buyer or Merger Subsidiary, (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to Buyer or any
subsidiary of Buyer (each, a "Buyer Subsidiary") or by which any property or
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asset of Buyer or any Buyer Subsidiary is bound or affected or (iii) result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, result in the loss of a material
benefit under or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of Buyer or any Buyer Subsidiary pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Buyer or any Buyer
Subsidiary is a party or by which Buyer or any Buyer Subsidiary or any property
or asset of Buyer or any Buyer Subsidiary is bound or affected, except for (A)
the applicable requirements of the Exchange Act and the Securities Act, (B) the
applicable requirements of state securities laws, takeover laws of Blue Sky laws
and (C) in the case of clauses (ii) and (iii) above, except for any such
conflicts, violations, breaches, defaults or other occurrences which,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Buyer Material Adverse Effect.
(c) No Consents. The execution and delivery of the Merger Agreement
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and this Agreement by Buyer and Merger Subsidiary do not, and neither the
performance of the Merger Agreement and this Agreement by Buyer and Merger
Subsidiary nor the consummation of the Transactions by the Company will, require
any consent, approval, authorization, order or permit of, or filing with or
notification to, any Governmental Entity, except for (i) applicable requirements
of the Exchange Act and the Securities Act, (ii) filing of appropriate merger
documents with the Secretary of State of the State of Georgia as required by the
Georgia Code, (iii) the applicable requirements of state securities laws,
takeover laws or Blue Sky laws and (iv) such other consents, approvals,
authorizations or permits, filings or notifications, not obtained or made prior
to consummation of the transactions contemplated hereby the failure of which to
be obtained or made would not prevent or delay consummation of the transactions
contemplated hereby, or otherwise prevent Buyer or Merger Subsidiary from
performing its obligations under the Merger Agreement or this Agreement in any
material respect, and which, individually or in the aggregate, have not had and
would not reasonably be expected to have a Buyer Material Adverse Effect.
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(d) Financing. Buyer has provided the Company with a copy of a
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commitment letter from the parties named therein to Buyer, dated as of July 6,
2001, relating to the debt financing to be provided to the Surviving Corporation
(the "Commitment Letter"), which is in full force and effect as of the date
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hereof. The financing contemplated by the Commitment Letter will provide Buyer,
subject to the terms and conditions set forth therein, with sufficient funds for
Buyer to pay the Acquisition Costs provided that (i) the representations and
warranties made by the Company in Sections 4.03 and 4.28 of the Merger Agreement
are true and correct in all respects (other than any misrepresentation that
would not exceed, in the aggregate for all such representations and warranties
in Section 4.03 and Section 4.28, $50,000) and (ii) the covenant set forth in
Section 6.01(h) of the Merger Agreement has not been breached. The commitment
fees set forth in the Commitment Letter which are due and payable have been
paid.
(e) No Brokers. Except for Xxxx Capital, Inc., whose fees will be
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paid by Buyer, there is no investment banker, broker, finder or other
intermediary (other than legal and accounting advisors) which have been retained
by or is authorized to act on behalf of Buyer or any of its subsidiaries (or any
director or officer thereof) who might be entitled to any fee or commission from
Buyer, Merger Subsidiary or any of their respective assignees upon consummation
of the transactions contemplated by this Agreement.
4. Covenants of Each Stockholder. Each Stockholder hereby,
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severally and not jointly, covenants and agrees as follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
in each case after such time as Merger Subsidiary has purchased the Subject
Shares of each Stockholder hereunder, and only if the record date for any such
vote precedes the date of the sale of such Subject Shares to Merger Subsidiary,
each Stockholder shall vote (or cause to be voted) the Subject Shares of such
Stockholder, including by executing a written consent solicitation if requested
by Buyer or Merger Subsidiary, in respect of which such Stockholder then has or
exercises voting control in favor of the Merger, the adoption by the Company of
the Merger Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which such Stockholder's
votes, consents or other approvals are sought, such Stockholder shall vote (or
cause to be voted) the Subject Shares of such Stockholder in respect of which
such Stockholder then has or exercises voting control against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company or
any other Acquisition Proposal and (ii) any amendment of the Company's articles
of incorporation or by-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal or
transaction would be reasonably likely to
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impede, frustrate, prevent, delay or nullify the Offer, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or change in any manner the voting rights of any class of common stock or other
voting securities of the Company. The Stockholder further agrees not to commit
or agree to take any action or enter into any agreement inconsistent with the
foregoing.
(c) Except for Xxxxxxx Xxxxxxx'x obligations to Xxxxx X. Xxxxxx as set
forth on the signature page attached hereto, such Stockholder shall not (i)
sell, transfer, give, pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or consent to any Transfer of, any or all of the
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Subject Shares of such Stockholder or any interest therein or enter into any
contract, option or other arrangement (including any profit sharing arrangement)
with respect to the Transfer of, the Subject Shares to any person other than
Merger Subsidiary or Merger Subsidiary's designee pursuant to the terms of the
Offer or the Merger or otherwise to Merger Subsidiary in accordance with Section
1 (other than any Transfer pursuant to the laws of descent or distribution) or
(ii) enter into any other voting arrangement, whether by proxy, voting
agreement, voting trust, power-of-attorney or otherwise, with respect to the
Subject Shares. Such Stockholder shall not commit or agree to take any of the
foregoing actions.
(d) Neither such Stockholder nor any of its officers, directors or
employees shall, and such Stockholder shall use its reasonable best efforts to
cause any investment banker, financial advisor, attorney, accountant or other
representative of any such Stockholder not to, directly or indirectly, (i)
solicit, initiate or encourage (including by way of furnishing information), or
take any other action to facilitate, any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, any Acquisition
Proposal, (ii) participate in any discussions or negotiations regarding any
Acquisition Proposal or (iii) enter into any agreement with respect to any
Acquisition Proposal. Such Stockholder promptly shall advise Buyer and Merger
Subsidiary orally and in writing of any Acquisition Proposal or inquiry made to
such Stockholder with respect to or that could lead to any Acquisition Proposal,
the identity of the person making such Acquisition Proposal or inquiry (if such
identification is not prohibited by the terms of the Acquisition Proposal) and
the material terms of any such Acquisition Proposal or inquiry. The foregoing
provisions of this paragraph (d) shall not, however, prohibit an individual
Stockholder, or any partner, stockholder, officer or affiliate of a Stockholder
that is a legal entity, who is a director of the Company from performing his or
her legally required fiduciary duties as a director of the Company as permitted
or required under the Merger Agreement.
(e) Such Stockholder hereby consents to and approves the actions taken
by the Board of Directors of the Company in approving the Merger Agreement, the
Merger and the other transactions contemplated by the Merger Agreement for
purposes of ensuring that the restrictions on business combinations set forth in
Parts 2 and 3 of Article 11 of the Georgia Code and in the Bylaws of the Company
do not, and will not, apply to this Agreement, the Merger Agreement or the
transactions contemplated thereby. Such Stockholder hereby waives, and agrees
not to exercise or assert, any appraisal rights under Article 13 of the Georgia
Code in connection with the Merger.
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5. Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) Each Stockholder hereby irrevocably and severally grants to, and
appoints, Buyer and Merger Subsidiary and Xxxxx Xxxx and Xxxx Xxxxxx, or any of
them, in their respective capacities as officers of Merger Subsidiary, and any
individual who shall hereafter succeed to any such office of Merger Subsidiary,
and each of them individually, such Stockholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of such
Stockholder, to vote such Stockholder's Subject Shares, or grant a consent or
approval in respect of such Subject Shares, in a manner consistent with Section
4(a) and 4(b) hereof.
(b) Each Stockholder severally represents that any proxies heretofore
given in respect of such Stockholder's Subject Shares are not irrevocable or if
irrevocable, that the valid consent to the revocation of such proxies from the
party or parties to whom such proxies were heretofore granted will be obtained,
and that any such proxies are hereby revoked to the extent necessary to effect
the transactions contemplated by Sections 1, 4 and 5 hereof. Each Stockholder
understands and acknowledges that Buyer and Merger Subsidiary are entering into
the Merger Agreement in reliance upon such Stockholder's execution and delivery
of this Agreement.
(c) Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Stockholder in accordance with this Agreement. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 14-2-722(d) of the Georgia Code. Such irrevocable proxy shall be valid
until the earlier to occur of (i) eleven months from the date hereof and (ii)
the termination of this Agreement pursuant to Section 9.
6. Further Assurances. Upon the terms and subject to the conditions
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set forth in this Agreement, each of Buyer and Merger Subsidiary agrees to
comply with its obligations under the Merger Agreement and each of the parties
agrees to use all reasonable best efforts to consummate and make effective the
other transactions contemplated by this Agreement. The foregoing provisions of
this Section shall not, however, prohibit an individual Stockholder, or any
partner, stockholder, officer or affiliate of a Stockholder that is a legal
entity, who is a director of the Company from performing his or her legally
required fiduciary duties as a director of the Company as permitted or required
under the Merger Agreement. Buyer shall cause Merger Subsidiary to consummate
the transactions contemplated hereby on the terms and subject to the conditions
set forth in this Agreement.
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7. Certain Events.
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(a) Each Stockholder agrees that all of the Stockholder's obligations
hereunder shall be binding upon any person or entity to which legal or
beneficial ownership of such Subject Shares shall pass, whether by operation of
law or otherwise, including such Stockholder's administrators or successors. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Common Stock or the acquisition of additional shares of Common
Stock or other securities of the Company by any Stockholder, the number of
Subject Shares listed on the Stockholders' signature page shall be deemed
adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Common Stock or other securities of the
Company issued to or acquired by such Stockholder.
(b) Each Stockholder agrees that it will deliver to the Company,
within 10 business days after the date of the commencement of the Offer (or, in
the event Subject Shares are acquired subsequent to the date hereof within 10
business days after the date of such acquisition), any and all certificates
representing such Stockholder's Subject Shares solely for the purpose of the
Company inscribing upon such certificates the following legend:
"The shares of Common Stock, no par value, of Full Line Distributors,
Inc., represented by this certificate are subject to a Stockholders'
Agreement, dated as of July 9, 2001, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Full Line
Distributors, Inc."
Upon request of the holder of any Subject Shares at any time after termination
of this Agreement, the Company shall issue to such holder in exchange for such
certificates new certificates of like tenor but not bearing the foregoing
legend.
8. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that (i)
Merger Subsidiary may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to any U.S. subsidiary of Buyer that may be
substituted for Merger Subsidiary in accordance with the terms of the Merger
Agreement so long as such subsidiary assumes all obligations of Merger
Subsidiary and Merger Subsidiary remains liable for all such obligations, and
(ii) Buyer may assign, in its sole discretion, any and all of its rights,
interests and obligations hereunder to any direct or indirect wholly-owned
subsidiary of Buyer that assumes all of Buyer's obligations hereunder, provided
that Buyer will remain liable for its obligations hereunder. 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.
9. Termination. This Agreement shall terminate: (A) immediately
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upon (i) the termination of the Merger Agreement by Buyer or Merger Subsidiary
in accordance with the terms
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of the Merger Agreement or (ii) the termination of the Merger Agreement by the
Company in accordance with Section 10.01(i) of the Merger Agreement; (B) upon
delivery by Stockholders holding Shares representing a majority of the Subject
Shares ("Majority Stockholders") of a notice of termination to Buyer or Merger
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Subsidiary at any time more than 180 days after the termination of the Merger
Agreement by the Company in accordance with Section 10.01(g) thereof; or (C)
upon delivery by Buyer of a notice of termination to the Company at any time
contemporaneously with or after the termination of the Merger Agreement by the
Company in accordance with the terms of the Merger Agreement. Notwithstanding
the foregoing, Sections 8, 9, 10, 11, 12 and 13 hereof shall survive any
termination of this Agreement. No termination of this Agreement shall relieve
any party from liability for breach of this Agreement or failure by such party
to perform its obligations hereunder.
10. Effectiveness. This Agreement shall be effective upon the
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execution of the Merger Agreement by all parties thereto.
11. Several Obligations. Notwithstanding any other provision hereof,
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each Stockholder's obligations hereunder are several, and not joint and several.
Upon execution hereof by Buyer, Merger Subsidiary and any Stockholder, this
Agreement shall be binding upon and inure to the benefit of Buyer, Merger
Subsidiary and each such Stockholder, regardless of the failure of any other
party listed on the signature page hereto to execute this Agreement.
12. General Provisions.
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(a) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(b) Notice. All notices, requests and other communications to any
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party hereunder shall be in writing, including facsimile, telex or similar
writing, and shall be deemed given if delivered to Buyer and Merger Subsidiary
at the address or telecopier number set forth in Section 11.01 of the Merger
Agreement and to the Stockholder at its address or telecopier number set forth
on Schedule A attached hereto (or at such other address or telecopier number for
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a party as shall be specified by like notice). Each such notice, request or
other communication shall be effective (i) if given by facsimile and received at
or prior to 5:00 p.m. local time on a business day, upon confirmation of
receipt, and if given by facsimile and received at any other time, upon the next
business day or (ii) if given by any other means, when delivered at the address
specified in this Section 12(b).
(c) Interpretation. When a reference is made in this Agreement to
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Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. 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. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
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(d) Counterparts. This Agreement may be executed in two or more
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counterparts, all of which shall be considered one and the same agreement, and
shall become effective when two or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
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WITH AND GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND
EFFECT, BY THE LAW OF THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(g) Severability. If any term or other provision of this Agreement
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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. 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
(h) Survival of Representations, Warranties and Covenants. The
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representations and warranties contained herein shall not survive the Effective
Time. Unless otherwise provided for herein, the covenants and agreements
contained herein shall not survive the Effective Time or the termination of this
Agreement.
13. Confidentiality; Public Announcements.
-------------------------------------
(a) Each Stockholder recognizes that successful consummation of the
transactions contemplated by this Agreement (including the Offer and the Merger)
may be dependent upon confidentiality with respect to the matters referred to
herein. In this connection, pending public disclosure thereof by Buyer, Merger
Subsidiary and the Company, each Stockholder hereby agrees not to issue any
press release or make any other public statement or disclose or discuss such
matters with anyone not a party to this Agreement (other than such Stockholder's
counsel and advisors, if any) without the prior written consent of Buyer and the
Company, except for filings required pursuant to the Exchange Act and the rules
and regulations thereunder or as required by law.
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(b) Subject to clause (a) above, Buyer and Merger Subsidiary, on the
one hand, and the Stockholder, on the other hand, will consult with each other
before issuing, and provide each other with a reasonable opportunity to review
and comment upon, any press release or other public statements with respect to
the transactions contemplated by this Agreement and the Merger Agreement,
including the Offer and the Merger, and shall not issue, and Buyer shall ensure
that none of its subsidiaries shall issue, any such press release or make any
such public statement prior to such consultation, except as may be required by
applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange or national securities quotation
system, in which case the party making such release will use reasonable efforts
to obtain comments from the other party before issuance of such release or
statement.
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IN WITNESS WHEREOF, Buyer, Merger Subsidiary and each Stockholder
listed on the attached signature pages have caused this Agreement to be duly
executed and delivered as of the date first written above.
BRODER BROS., CO.
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: CEO
FLD ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: CEO
-13-
Signature page to Stockholders' Agreement
Name of Stockholder:
J. Xxxxx Xxxxxx
--------------------------
(please print legal name or entity or
individual)
By: /s/ J. Xxxxx Xxxxxx
Number of Subject Shares owned as of July 9,
2001:
650,651 shares of Common Stock
Notice Address:
J. Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxxxx & Xxxxxxx, LLP
1230 Peachtree Street, N.E.
Suite 3100, Promenade II
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxx Xxxxxxxx
Xxxxxx X. Xxxxx
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Signature page to Stockholders' Agreement
Name of Stockholder:
Xxxxxx X. Xxxxxxx
-----------------------------------
(please print legal name or entity or
individual)
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Number of Subject Shares owned as of July 9,
2001:
1,955,944 shares of Common Stock*
Notice Address:
Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxxxx & Xxxxxxx, LLP
1230 Peachtree Street, N.E.
Suite 3100, Promenade II
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxx Xxxxxxxx
Xxxxxx X. Xxxxx
*The obligations of Xxxxxx Xxxxxxx are subject to the following: Xxxxxx X.
Xxxxxxx granted to Xxxxx X. Xxxxxx the option to purchase 19,500 shares of the
Common Stock of the Company owned by Xx. Xxxxxxx at a price of $1.21 per share
pursuant to the terms of that certain Third Amended and Restated Option
Agreement dated April 4, 1996.
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