[EXECUTION VERSION]
TRANSACTION SUPPORT AGREEMENT
This Transaction Support Agreement, dated as of June 11, 2002
(this "Agreement"), is made by and among Cemex, S.A. de C.V., a Mexico
corporation ("Parent"), Tricem Acquisition, Corp., a Puerto Rico corporation
("Purchaser"), and the stockholder of Puerto Rican Cement Company, Inc., a
Puerto Rico corporation (the "Company"), identified on the signature page hereto
(the "Stockholder").
WITNESSETH:
WHEREAS, Parent, Purchaser and the Company are entering into
an Agreement and Plan of Merger, dated as of the date hereof (as it may be
amended from time to time, the "Merger Agreement"; capitalized terms used and
not otherwise defined in this Agreement have the meanings ascribed to such terms
in the Merger Agreement), pursuant to which (i) Purchaser shall commence a cash
tender offer (as such tender offer may hereafter be amended from time to time in
accordance with the Merger Agreement, the "Offer") to acquire each issued and
outstanding share of common stock, par value $1.00 per share, of the Company
("Common Stock") in exchange for a net amount of $35.00 in cash (the "Offer
Price") in accordance with and subject to the terms and conditions of the Merger
Agreement and the Offer; and (ii) following consummation of the Offer, the
Company shall merge with Purchaser (the "Merger");
WHEREAS, the Stockholder is the record or beneficial owner of
the number of shares of Common Stock set forth on Schedule A hereto (all such
shares of Common Stock and any shares of Common Stock hereafter acquired by the
Stockholder, the "Shares");
WHEREAS, as a condition to entering into the Merger Agreement
and incurring the obligations set forth therein, including the Offer, Parent and
Purchaser have required that the Stockholder agree to enter into this Agreement
and certain other stockholders of the Company agree to enter into similar
Transaction Support Agreements; and
WHEREAS, the Stockholder wishes to induce Parent and Purchaser
to enter into the Merger Agreement and, therefore, the Stockholder is willing to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
TENDER OF SHARES
Section 1.01 Tender of Shares. The Stockholder agrees to
promptly (and, in any event, not later than two Business Days prior to the
scheduled expiration date of the Offer) tender or cause to be tendered into the
Offer, pursuant to and in accordance with the terms of the Offer, and not
withdraw or cause to be withdrawn (except following the termination of the Offer
in accordance with its terms), all of the Shares. The Stockholder acknowledges
and agrees that Purchaser's obligation to accept for payment shares of Common
Stock in the Offer, including any Shares tendered by a Stockholder, is subject
to the terms and conditions of the Merger Agreement and the Offer.
ARTICLE II
VOTING AGREEMENT
Section 2.01 Voting Agreement. The Stockholder hereby
agrees that, from and after the date hereof and until the date (the "Voting
Termination Date") that is the later of (i) the termination of the Merger
Agreement in accordance with its terms or (ii) the Option Termination Date (as
defined below), if any, at any meeting of the stockholders of the Company,
however called, and in any action by consent of the stockholders of the Company,
the Stockholder shall vote (or cause to be voted) all the Shares (i) in favor of
adoption of the Merger Agreement, the Merger and all the transactions
contemplated by the Merger Agreement and this Agreement and otherwise in such
manner as may be necessary to consummate the Merger; (ii) against any action,
proposal, agreement or transaction that would result in a breach of any
covenant, obligation, agreement, representation or warranty of the Company under
the Merger Agreement or of the Stockholder contained in this Agreement; and
(iii) against any action, agreement, transaction (other than the Merger
Agreement or the transactions contemplated thereby) or proposal (including any
Takeover Proposal or Superior Proposal) that could reasonably be expected to
result in any of the conditions to the Company's obligations under the Merger
Agreement not being fulfilled or that is intended, or could reasonably be
expected, to impede, interfere, delay, discourage or adversely affect the Merger
Agreement, the Offer, the Merger or this Agreement. Any vote by the Stockholder
that is not in accordance with this Section 2.01 shall be considered null and
void, and the provisions of Section 2.02 shall be deemed to take immediate
effect.
Section 2.02 Irrevocable Proxy. If, and only if, the
Stockholder fails to comply with the provisions of Section 2.01, the Stockholder
hereby agrees that such failure shall result, without any further action by the
Stockholder effective as of the date of such failure, in the constitution and
appointment of Parent and each of its executive officers from and after the date
of such determination until the Voting Termination Date (at which point such
constitution and appointment shall automatically be revoked) as the
Stockholder's attorney, agent and proxy (such constitution and appointment, the
"Irrevocable Proxy"), with full power of substitution, to vote and otherwise act
with
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respect to all the Shares at any meeting of the stockholders of the Company
(whether annual or special and whether or not an adjourned or postponed
meeting), and in any action by written consent of the stockholders of the
Company, on the matters and in the manner specified in Section 2.01. THIS PROXY
AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON
TO WHOM THE STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS
AGREEMENT. The Stockholder hereby revokes all other proxies and powers of
attorney with respect to all the Shares that may have heretofore been appointed
or granted, and no subsequent proxy or power of attorney shall be given (and if
given, shall not be effective) by the Stockholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of the Stockholder and any obligation of the Stockholder under this
Agreement shall be binding upon the heirs, personal representatives, successors
and assigns of the Stockholder.
ARTICLE III
THE OPTION
Section 3.01 Grant of Option. The Stockholder hereby
grants to Parent an irrevocable option (each, an "Option" and, collectively, the
"Options") to purchase all of the Shares (the "Option Shares") at a purchase
price per Share (the "Purchase Price") equal to $35.00 less the value of any
dividends per Option Share declared or paid from and after the date of this
Agreement through the end of the Option Exercise Period and subject to
adjustment pursuant to Section 7.13(a), other than any dividends paid in
accordance with clause (A) of Section 8.2(b)(3) of the Merger Agreement.
Section 3.02 Payment of the Purchase Price. The Purchase
Price shall be payable by Parent in cash by wire transfer in immediately
available funds to a bank account to be designated by the Stockholder in a
written notice to Parent at least two Business Days prior to the Closing Date
(as defined below).
Section 3.03 Exercise of Option.
(a) If either (i) a Termination Fee has been
paid or is payable pursuant to Section 10.3 of the Merger Agreement, (ii) the
Merger Agreement is terminated as a result of the failure to satisfy the Minimum
Condition (as defined in the Merger Agreement) to the Offer and at or prior to
the time of such termination it has become publicly known that a Takeover
Proposal has been made or (iii) if a Subsequent Amendment (as defined in the
Merger Agreement) is received by the Company or becomes publicly known, then
each of the Options shall become exercisable by Parent for a period (the "Option
Exercise Period") commencing on the earlier of the date on which a Subsequent
Amendment is received by Company or becomes publicly known and the date on which
the Merger Agreement is terminated and ending at 11:59 p.m. (New York time) on
the 30th day following the date on which the Merger Agreement is terminated (the
day on which the Option Exercise Period ends, the "Option Termination Date").
The
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Options shall be exercisable in whole but not in part, and in no event shall
Parent be permitted to exercise an Option with respect to the Shares unless
Parent concurrently exercises all Options to purchase the shares of Common Stock
subject to each Transaction Support Agreement from all stockholders who have
executed a Transaction Support Agreement.
(b) If Parent wishes to exercise the Options
during the Option Exercise Period, Parent shall send a written notice (the
"Exercise Notice") to the Stockholder of its intention to exercise the
Stockholder's Option, specifying the place, and, if then known, the time and the
date (the "Closing Date") of the closing of such purchase (the "Closing"). The
Closing Date shall, subject to satisfaction of the conditions in paragraph (d),
occur on the later of (i) the third Business Day after the date on which such
Exercise Notice is delivered and (ii) one Business Day following the expiration
or termination of the waiting period under the HSR Act applicable to the
consummation of the purchase and sale of the Shares hereunder.
(c) At the Closing, (i) the Stockholder shall
deliver to Parent (or its designee) the Shares by delivery of a certificate or
certificates evidencing such Shares duly endorsed to Parent or accompanied by
stock powers duly executed in favor of Parent, with all necessary stock transfer
stamps affixed, and (ii) Parent shall pay for the Shares in accordance with
Section 3.02.
(d) The Closing shall be subject to the
satisfaction or, in the case of clause (iii) below, waiver by the Stockholder of
each of the following conditions:
(i) no Governmental Authority shall
have enacted, issued, promulgated, enforced or entered any Law that is
then in effect and no order of any Governmental Authority shall have
been entered or be in effect, in either case that has the effect of
making the acquisition of the Shares by Parent illegal or otherwise
restricting, preventing or prohibiting consummation of the purchase and
sale of the Shares pursuant to the exercise of the Options; and
(ii) any waiting period under the HSR
Act applicable to the consummation of the purchase and sale of the
Shares hereunder shall have expired or been terminated.
(e) At the Closing, (i) the Stockholder will
deliver good and valid title to the Shares free and clear of any Liens and, upon
delivery to Parent of such Shares and payment for the Purchase Price therefor as
contemplated herein, Parent will receive good, valid and marketable title to the
Shares free and clear of any Liens, and (ii) Parent shall deliver to the
Stockholder the Purchase Price.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and
to Purchaser as follows:
Section 4.01 Organization, Authority and Qualification of
the Stockholder. The Stockholder is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization or formation and
has all necessary power and authority to enter into this Agreement, to carry out
its obligations hereunder and to consummate the transactions contemplated
hereby. The Stockholder is duly licensed or qualified to do business and is in
good standing in each jurisdiction in which the properties owned or leased by it
or the operation of its business makes such licensing or qualification
necessary, except to the extent that the failure to be so licensed or qualified
would not prevent or materially delay the ability of the Stockholder to carry
out its obligations under, and to consummate the transactions contemplated by,
this Agreement. The execution and delivery of this Agreement by the Stockholder,
the performance by the Stockholder of its obligations hereunder and the
consummation by the Stockholder of the transactions contemplated hereby have
been duly authorized by all requisite action on the part of the Stockholder.
This Agreement has been duly and validly executed and delivered by the
Stockholder and (assuming due authorization, execution and delivery by Parent
and Purchaser) this Agreement constitutes a legal, valid and binding obligation
of the Stockholder enforceable against the Stockholder in accordance with its
terms.
Section 4.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not, (i) conflict with or violate the certificate of
incorporation and by-laws, agreement of limited partnership, limited liability
company agreement or equivalent organizational documents, as the case may be, of
the Stockholder, (ii) assuming satisfaction of the requirements set forth in
4.02(b) below, conflict with or violate any Law applicable to the Stockholder or
by which any property or asset of the Stockholder is bound or affected or (iii)
result in any breach of, or constitute a default (or event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a Lien on any Shares (other than pursuant to this Agreement)
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation of the Stockholder,
except for any such conflicts, violations, breaches, defaults or other
occurrences that would not prevent or materially delay the ability of the
Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement.
(b) The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not, require any consent, approval, authorization or permit
of, or filing with, or notification to, any Governmental Authority, except (i)
for applicable requirements, if any, of the Exchange Act, Blue Sky Laws and the
premerger notification requirements of the HSR Act, and (ii) where the failure
to obtain such consents, approvals, authorizations
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or permits, or to make such filings or notifications, would not prevent or
materially delay the ability of the Stockholder to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement.
Section 4.03 Ownership of Shares. As of the date hereof,
the Stockholder is the record or beneficial owner of, and has good title to, the
number of Shares set forth on Schedule A hereto. Except as set forth on Schedule
A, the Shares are all the securities of the Company owned, either of record or
beneficially, by the Stockholder as of the date hereof and the Stockholder does
not have any option or other right to acquire any other securities of the
Company. The Shares owned by the Stockholder are owned free and clear of all
Liens, other than any Liens created by this Agreement. Except as provided in
this Agreement, the Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned by the
Stockholder.
Section 4.04 Absence of Litigation. As of the date of
this Agreement, there is no litigation, suit, claim, action, proceeding or
investigation pending or, to the knowledge of the Stockholder, threatened
against the Stockholder, or any property or asset of the Stockholder, before any
Governmental Authority that seeks to delay or prevent the consummation of the
transactions contemplated by this Agreement.
Section 4.05 Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Each of Parent and Purchaser hereby severally but not jointly
represents and warrants to the Stockholder as to itself as follows:
Section 5.01 Organization, Authority and Qualification.
Each of Parent and Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
Each of Parent and Purchaser is duly licensed or qualified to do business and is
in good standing in each jurisdiction in which the properties owned or leased by
it or the operation of its business makes such licensing or qualification
necessary, except to the extent that the failure to be so licensed or qualified
would not prevent or materially delay the ability of Parent or Purchaser to
carry out its obligations under, and to consummate the transactions contemplated
by, this Agreement. The execution and delivery of this Agreement by each of
Parent and Purchaser, the performance by each of Parent and Purchaser of its
obligations hereunder and the consummation by each of Parent and Purchaser of
the transactions contemplated hereby have been duly authorized by all requisite
action on the part of each of Parent and
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Purchaser. This Agreement has been duly and validly executed and delivered by
each of Parent and Purchaser and (assuming due authorization, execution and
delivery by the Stockholder) this Agreement constitutes a legal, valid and
binding obligation of each of Parent and Purchaser enforceable against Parent
and Purchaser in accordance with its terms.
Section 5.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement
by each of Parent and Purchaser do not, and the performance of this Agreement by
each of Parent and Purchaser shall not, (i) conflict with or violate the
certificate of incorporation and by-laws of Parent or Purchaser, (ii) assuming
satisfaction of the requirements set forth in Section 5.02(b) below, conflict
with or violate any Law applicable to Parent or Purchaser or by which any
property or asset of Parent or Purchaser is bound or affected or (iii) result in
any breach of, or constitute a default (or event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation of Parent or Purchaser, except for any such
conflicts, violations, breaches, defaults or other occurrences that would not
prevent or materially delay the ability of Parent or Purchaser to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement.
(b) The execution and delivery of this Agreement
by each of Parent and Purchaser do not, and the performance of this Agreement by
each of Parent and Purchaser shall not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any Governmental
Authority, except (i) for applicable requirements, if any, of the Securities
Act, the Exchange Act, Blue Sky Laws and the premerger notification requirements
of the HSR Act, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or materially delay the ability of Parent or Purchaser to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement.
ARTICLE VI
COVENANTS OF THE STOCKHOLDER
Section 6.01 No Disposition or Encumbrance of Shares. The
Stockholder hereby agrees that, except as contemplated by this Agreement, the
Stockholder shall not (i) sell, transfer, tender (except into the Offer),
pledge, assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to (other
than the Irrevocable Proxy), deposit into any voting trust, enter into any
voting agreement, or create or permit to exist any Liens of any nature
whatsoever (other than pursuant to this Agreement) with respect to, any of the
Shares (or agree or consent to, or offer to do, any of the foregoing), or (ii)
take any action that would make any representation or warranty of the
Stockholder herein untrue or
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incorrect in any material respect or have the effect of preventing or disabling
the Stockholder from performing the Stockholder's obligations hereunder.
Section 6.02 No Solicitation of Transactions. The
Stockholder shall not, directly or indirectly, through any director, officer,
affiliate, employee, representative, agent or otherwise, (i) solicit, initiate,
endorse, accept or encourage the submission of any Takeover Proposal, or (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or otherwise cooperate in any way with
respect to, or participate in, assist, facilitate, endorse or encourage any
proposal that constitutes, or may reasonably be expected to lead to, a Takeover
Proposal; provided, however, that nothing herein shall prevent any director,
officer or stockholder of the Stockholder from acting in his or her capacity as
a director of the Company, or taking any action in such capacity (including at
the direction of the Company Board), but only in either such case as and to the
extent permitted by Section 8.5 of the Merger Agreement. The Stockholder shall,
and shall direct or cause its directors, officers, affiliates, employees,
representatives and agents to, immediately cease and cause to be terminated any
discussions or negotiations with any parties that may be ongoing with respect to
a Takeover Proposal.
Section 6.03 Further Action; Reasonable Best Efforts.
Upon the terms and subject to the conditions hereof, Parent, Purchaser and the
Stockholder shall use their reasonable best efforts to take, or cause to be
taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement.
Section 6.04 Information for Offer Documents and Proxy
Statement; Disclosure. The Stockholder covenants and agrees that none of the
information relating to the Stockholder and its affiliates for inclusion in the
Schedule 14D-9, the Offer Documents or, if applicable, the Proxy Statement that
has been furnished to Parent by the Stockholder for inclusion in such documents
will, at (i) the time the Schedule 14D-9 or the Proxy Statement (or any
amendment or supplement thereto) is first filed with the SEC or mailed to
stockholders of the Company or (ii) the time of the Company Stockholders Meeting
(in the case of information included in the Proxy Statement), contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The Stockholder
agrees to permit Parent and Purchaser to publish and disclose in the Offer
Documents and, if applicable, the Proxy Statement and any related filings under
applicable securities Laws the Stockholder's identity and ownership of Shares
and the nature of its commitments, arrangements and understandings under this
Agreement and any other information regarding the Stockholder as required by
applicable Law.
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ARTICLE VII
MISCELLANEOUS
Section 7.01 Notices. All notices, requests, claims,
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 telecopy or by registered or certified mail (postage prepaid, return
receipt requested) 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 7.01):
(a) if to the Stockholder:
XX Xxx 0000000
Xxx Xxxx, XX 00000-0000
(b) if to Parent or Purchaser:
c/o CEMEX
000 Xxxxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxx
and
CEMEX, S.A. de C.V.
Ave. Constitucion 444 Pte.
Xxxxxxxxx, XX, Xxxxxx 00000
Telecopy: 011-52818-328-3082
Attention: Xxxxxx Xxxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
and
Xxxxxx, Xxxxx & Xxxxxx
00 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxx
Section 7.02 Severability. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any rule
of Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in
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full force and effect so long as the economic or legal substance of the
transactions contemplated hereby and by the Merger Agreement are not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that such transactions be consummated as originally
contemplated to the fullest extent possible.
Section 7.03 Entire Agreement; Assignment. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof. This Agreement shall not be assigned by operation of law or otherwise,
except that Parent and Purchaser may assign all or any of their rights and
obligations hereunder to any wholly owned subsidiary of Parent, provided that no
such assignment shall relieve Parent or Purchaser of its obligations hereunder.
Section 7.04 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto and, except as
set forth in Section 7.10 hereof, nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.05 Specific Performance. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at Law or in equity.
Section 7.06 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that State (other
than those provisions set forth herein that are required to be governed by the
Corporation Law of the Commonwealth of Puerto Rico). All actions and proceedings
arising out of or relating to this Agreement shall be heard and determined
exclusively in any New York state or federal court sitting in the Borough of
Manhattan of The City of New York. The parties hereto hereby (a) submit to the
exclusive jurisdiction of any state or federal court sitting in the Borough of
Manhattan of The City of New York for the purpose of any action arising out of
or relating to this Agreement brought by any party hereto, and (b) irrevocably
waive, and agree not to assert by way of motion, defense, or otherwise, in any
such action, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, that the venue
of the action is improper, or that this Agreement may not be enforced in or by
any of the above-named courts.
Section 7.07 Waiver of Jury Trial. Each of the parties
hereto hereby waives to the fullest extent permitted by applicable Law any right
it may have to a trial
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by jury with respect to any litigation directly or indirectly arising out of,
under or in connection with this Agreement. Each of the parties hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the others hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section 7.07.
Section 7.08 Headings. The descriptive headings contained
in this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
Section 7.09 Counterparts. This Agreement may be executed
and delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section 7.10 Amendment. This Agreement may not be amended
except by an instrument in writing signed by all the parties hereto.
Notwithstanding the foregoing, the provisions of this Agreement shall not be
amended without the prior written consent of the Company.
Section 7.11 Waiver. Any party to this Agreement may (i)
extend the time for the performance of any obligation or other act of any other
party hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
Section 7.12 Costs and Expenses of This Agreement and the
Merger Agreement. All costs and expenses of the parties hereto, including,
without limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
Section 7.13 Adjustments.
(a) In the event (i) of any increase or decrease
or other change in the Shares by reason of stock dividend, stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii) that a
Stockholder becomes the beneficial owner of any additional shares of Common
Stock or other securities of the Company, then (x) the terms of this Agreement
shall apply to the shares of capital stock and other securities of the Company
held by the Stockholder immediately following the effectiveness of the events
described in clause (i), or the Stockholder becoming the beneficial owner
thereof
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pursuant to clause (ii), and (y) the Purchase Price shall be equitably adjusted
to reflect the impact of any event described in clause (i).
(b) The Stockholder hereby agrees to promptly
notify Parent and Purchaser of the number of any new Shares or other securities
acquired by the Stockholder, if any, after the date hereof.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
CEMEX, S.A. DE C.V.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
TRICEM ACQUISITION, CORP.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice-President
SOUTH MANAGEMENT CORPORATION
By: /s/ Antonio Xxxx Xxxxx
---------------------------------------
Name: Antonio Xxxx Xxxxx
Title: President
SCHEDULE A
NUMBER OF SHARES OF COMMON STOCK
537,174
