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EXHIBIT 10.22
STOCKHOLDER AGREEMENT
(Respecting voting of shares of ICO)
THIS STOCKHOLDER AGREEMENT dated as of December 8, 1995 (this
"Agreement") is made by and among Wedco Technology, Inc., a New Jersey
corporation ("Wedco"), and each other person set forth on the signature pages
hereof in their capacity as a stockholder as set forth herein (collectively,
the "Stockholders"; individually, a "Stockholder").
R E C I T A L S:
WHEREAS, ICO, Inc., a Texas corporation ("ICO"), W Acquisition Corp.,
a New Jersey corporation and wholly owned subsidiary of ICO ("W Acquisition"),
and Wedco propose to enter into a Merger Agreement dated as of December 8, 1995
(the "Merger Agreement") pursuant to which Wedco shall merge with and into W
Acquisition; and,
WHEREAS, each Stockholder is the legal or beneficial owner of, or
exercises voting control over, the shares of common stock, no par value per
share, of ICO ("ICO Common Stock"; collectively, the "Shares") set opposite
such Stockholder's name on Schedule 1 attached hereto; and,
WHEREAS, as a condition to the willingness of Wedco to enter into the
Merger Agreement, Wedco has required that the Stockholders agree, and in order
to induce Wedco to enter into the Merger Agreement, the Stockholders have
agreed, 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 hereby agree as follows:
ARTICLE 1
AGREEMENTS
SECTION 1.1 Voting Agreement. Each of the Stockholders hereby
agrees that, until the termination of this Agreement, at any meeting of the
stockholders of ICO or any adjournment thereof, however called, or in any other
circumstances upon which his, her or its
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vote, consent, or other approval is sought, each of the Stockholders shall vote
or cause to be voted such Stockholder's Shares in favor of the various
transactions contemplated by the Merger Agreement (the "Transactions") and
against any proposal for any action or agreement that would in any manner
impede, frustrate, prevent or nullify any of the Transactions, or result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of ICO under the Merger Agreement or which would result in any of the
conditions to ICO's or Wedco's obligations under the Merger Agreement not being
fulfilled ("Competing Transaction"). Each of the Stockholders acknowledges
receipt of a copy of the Merger Agreement.
SECTION 1.2 No Inconsistent Arrangements.
(a) Each of the Stockholders hereby covenants and agrees
that, until the termination of this Agreement and except as contemplated by
this Agreement, he, she or it shall not: (i) transfer (which term shall
include, without limitation, any sale, gift, pledge or other disposition), or
consent to any transfer of, or enter into discussions or negotiations with any
party for or with respect to the transfer of, any or all of such Stockholder's
Shares or any interest therein; (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of such
Shares or any interest therein; (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to such Shares; (iv) deposit such Shares
into a voting trust or enter into a voting agreement or arrangement with
respect to such Shares; or (v) take any other action that would in any way
restrict, limit or interfere with the performance of his, her or its
obligations hereunder or the transactions contemplated hereby or in the Merger
Agreement.
(b) Notwithstanding Section 1.2(a) and 1.5 hereof, a
Stockholder may transfer Shares: (i) to any person who shall have agreed to be
bound by all of the obligations of such Stockholder hereunder with respect to
such Shares and shall have executed a counterpart of this Agreement for such
purpose; (ii) by operation of law in the event of the death or incapacity of
such Stockholder; or (iii) pursuant to any written agreement respecting such
transfer made prior to the date hereof, a copy of which has been furnished to
Wedco prior to the date hereof.
SECTION 1.3 GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(a) UNTIL THE TERMINATION OF THIS AGREEMENT, EACH
STOCKHOLDER HEREBY IRREVOCABLY GRANTS TO, AND APPOINTS, WEDCO, AND XXXXXX X.
XXXX AND XXXXXX X. XXXXX, OR ANY ONE OR MORE OF THEM, IN THEIR RESPECTIVE
CAPACITIES AS OFFICERS OR DESIGNEES OF WEDCO, AND ANY INDIVIDUAL WHO SHALL
HEREAFTER SUCCEED TO ANY SUCH OFFICE OR DESIGNATION OF WEDCO AND EACH OF THEM
INDIVIDUALLY, SUCH STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH
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FULL POWER OF SUBSTITUTION) FOR AND IN THE NAME, PLACE AND STEAD OF SUCH
STOCKHOLDER, TO VOTE SUCH STOCKHOLDER'S SHARES, OR GRANT A CONSENT OR APPROVAL
IN RESPECT OF SUCH SHARES, IN FAVOR OF THE TRANSACTIONS AND AGAINST ANY
COMPETING TRANSACTION.
(b) SUCH STOCKHOLDER REPRESENTS THAT ANY PROXIES
HERETOFORE GIVEN IN RESPECT OF SUCH STOCKHOLDER'S SHARES ARE NOT IRREVOCABLE,
AND THAT ANY SUCH PROXIES ARE HEREBY REVOKED.
(c) SUCH STOCKHOLDER UNDERSTANDS AND ACKNOWLEDGES THAT
WEDCO IS ENTERING INTO THE MERGER AGREEMENT IN RELIANCE UPON SUCH STOCKHOLDER'S
EXECUTION AND DELIVERY OF THIS AGREEMENT. SUCH STOCKHOLDER HEREBY AFFIRMS THAT
THE IRREVOCABLE PROXY SET FORTH IN THIS SECTION 1.3 IS GIVEN IN CONNECTION WITH
THE EXECUTION OF THE MERGER AGREEMENT, AND THAT SUCH IRREVOCABLE PROXY IS GIVEN
TO SECURE THE PERFORMANCE OF THE DUTIES OF THE STOCKHOLDER UNDER THIS
AGREEMENT. SUCH STOCKHOLDER HEREBY FURTHER AFFIRMS THAT THE IRREVOCABLE PROXY
IS COUPLED WITH AN INTEREST AND MAY UNDER NO CIRCUMSTANCES BE REVOKED. SUCH
STOCKHOLDER HEREBY RATIFIES AND CONFIRMS ALL THAT SUCH IRREVOCABLE PROXY MAY
LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF. SUCH IRREVOCABLE PROXY IS
EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF
ARTICLE 2.29 OF THE TEXAS BUSINESS CORPORATION ACT.
SECTION 1.4 No Solicitation. Each of the Stockholders hereby
covenants and agrees that, until the termination of this Agreement, it shall
not, directly or indirectly, through any officer, director, agent or otherwise,
initiate, solicit, encourage, negotiate or discuss with any third party, or
take any other action to facilitate any inquiries with respect to or the making
of, any proposal that constitutes or may reasonably be expected to lead to a
Competing Transaction, or, unless otherwise required by law, furnish to any
other person any information with respect to ICO or its subsidiaries or afford
access to any of the properties, books or records of ICO or its subsidiaries
for the purposes of, or cooperate with, or assist or participate in, facilitate
or encourage, any effort or attempt by any other person or entity to seek or
effect a Competing Transaction; provided, however, that in the event that,
notwithstanding compliance by such Stockholder with the foregoing provisions of
this Section 1.4, ICO receives a proposal with respect to a Competing
Transaction, then, and only to the extent necessary, if necessary to act in
accordance with such Stockholder's fiduciary duties as a member of the ICO
Board of Directors, under applicable laws (as determined by the ICO Board of
Directors in good faith after consultation with and based upon advice of
counsel), such Stockholder may take actions otherwise prohibited by the
foregoing provisions of this Section 1.4.
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SECTION 1.5 Certain Events. Each Stockholder agrees that, except
for Shares transferred pursuant to Sections 1.2(b)(ii) or 1.2(b)(iii), this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including without limitation such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of ICO affecting the ICO Common Stock or the acquisition of
additional shares of ICO Common Stock or other voting securities of ICO by any
Stockholder, the number of shares as to which such Stockholder is bound hereby
shall be appropriately adjusted and this Agreement and the obligations
hereunder shall attach to any additional shares of ICO Common Stock or other
voting securities of ICO issued to or acquired by such Stockholder.
SECTION 1.6 Best Efforts. Subject to the terms and conditions of
this Agreement, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
Each party shall promptly consult with the other and provide any necessary
information and material with respect to all filings made by such party with
any governmental or regulatory authority, domestic or foreign, in connection
with this Agreement and the transactions contemplated hereby.
SECTION 1.7 Further Assurances. Each Stockholder shall perform
such further acts and execute such further documents and instruments as may
reasonably be required to vest in Wedco the power to carry out the provisions
of this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Wedco as follows:
SECTION 2.1 Ownership, Voting Authority. Such Stockholder is the
legal or beneficial owner of, or exercises voting control over, the Shares set
forth opposite such Stockholder's name on Schedule 1 attached hereto.
SECTION 2.2 Authority Relative to this Agreement. Such
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by such Stockholder and the consummation by such Stockholder of the
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transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of such Stockholder, and no other proceedings on
the part of such Stockholder are necessary to authorize this Agreement or to
consummate such transactions. This Agreement has been duly and validly
executed and delivered by or on behalf of such Stockholder and, assuming this
Agreement constitutes a valid and binding obligation of Wedco, constitutes a
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
SECTION 2.3 No Conflict; Required Filings and Consents. Except
for filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the HSR Act, the Securities Act of
1933, as amended (the "Securities Act") and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the execution and delivery of this
Agreement by such Stockholder do not, and the performance of this Agreement by
such Stockholder shall not: (i) conflict with or violate the certificate of
incorporation or by-laws or comparable organizational documents of such
Stockholder (in the case of a Stockholder that is a corporation, partnership or
other legal entity); (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to such Stockholder or by which the Shares
owned by such Stockholder are bound or affected; (iii) result in any breach of
or constitute a default (or an 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 agreement, contract, indenture,
note or instrument to which such Stockholder is a party or by which such
Stockholder is bound or affected, except for any such breaches, defaults or
other occurrences that would not cause or create a material risk of
non-performance or delayed performance by such Stockholder of its obligations
under this Agreement; or (iv) require any filing by such Stockholder with, or
any permit, authorization consent or approval of, any governmental or
regulatory authority, domestic or foreign.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF WEDCO
Wedco hereby represents and warrants to each Stockholder as follows:
SECTION 3.1 Authority Relative to this Agreement. Wedco is a
corporation duly organized and validly existing under the laws of the State of
New Jersey. Wedco has all necessary power and authority (corporate and
otherwise) to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation by Wedco of the
transactions contemplated hereby have been duly authorized by the Board of
Directors by Wedco, and no other corporate proceedings on the part of Wedco
are necessary to authorize
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this Agreement or for Wedco to consummate such transactions. This Agreement
has been duly executed and delivered by Wedco and, assuming its due
authorization, execution and delivery by each Stockholder, constitutes a legal,
valid and binding obligation of Wedco, enforceable against Wedco, in accordance
with its terms.
SECTION 3.2 No Conflict; Required Filings and Consents. Except
for filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the HSR Act, the Securities Act
and the Exchange Act, the execution and delivery of this Agreement by Wedco do
not, and the performance of this Agreement by Wedco will not: (i) conflict
with or violate the articles of incorporation or by-laws of Wedco; (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to Wedco or by which Wedco is bound or affected; (iii) result in any
breach of or constitute a default (or an 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 agreement,
contract, indenture, note or instrument to which Wedco is a party or by which
it is bound or affected, except for any such breaches, defaults or other
occurrences that would not cause or create a material risk of non-performance
or delayed performance by Wedco of its obligations under this Agreement; or
(iv) require any filing by Wedco with, or any permit, authorization, consent or
approval of, any governmental or regulatory authority, domestic or foreign.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1 Specific Performance. The parties hereto agree that
if any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached, irreparable damage would
occur, no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or equity.
SECTION 4.2 Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between the parties, or any of them, with respect to the subject matter
hereof.
SECTION 4.3 Amendment. This Agreement may not be amended except
by an instrument in writing signed by the parties hereto.
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SECTION 4.4 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 provisions of this Agreement shall
nevertheless remain in full force and effect for so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon a 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 a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
SECTION 4.5 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Texas without regard
to any applicable conflicts of law principles.
SECTION 4.6 Legal Opinion. Prior to or simultaneous with the
execution of this Agreement, the Stockholders and Wedco shall have received an
opinion from Xxxxxx & Xxxxxx in form and substance reasonably satisfactory to
them, substantially to the effect that, this Agreement creates legal, valid and
binding obligations of the parties hereto and is enforceable in accordance with
its terms under the laws of the State of Texas.
SECTION 4.7 Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective as to any Stockholder when one or more
counterparts have been signed by each of Wedco and such Stockholder and
delivered to Wedco and such Stockholder.
SECTION 4.8 Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier (providing
proof of delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice): (i) if to Wedco, to
its address set forth in Section 10.4 of the Merger Agreement; and (ii) if to a
Stockholder, to ICO's address set forth in Section 10.4 of the Merger Agreement
unless another address is specified on the signature pages hereof.
SECTION 4.9 Expenses. Each of the parties hereto shall bear and
pay all costs and expenses incurred by it or on its own behalf.
SECTION 4.10 Interpretation. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
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SECTION 4.11 Termination. This Agreement shall terminate: (i)
with the written consent of Wedco and of the Stockholders holding a majority of
interest in the Shares; or (ii) upon the termination of the Merger Agreement.
No termination of this Agreement shall expand, extend, limit or reduce any of
the rights or remedies of any party to the Merger Agreement.
THIS SPACE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Stockholders and Wedco have caused this
Stockholder Agreement to be duly executed on the date hereof.
WEDCO TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
/s/ Xx. Xxxxx O. Pacholder
-------------------------------------
Xx. Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
PACHOLDER ASSOCIATES, INC.
By: /s/ Xx. Xxxxx O. Pacholder
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Name: Xx. Xxxxx X. Xxxxxxxxx
Title: Chairman
P M DELAWARE, INC.
By: /s/ Xx. Xxxxx O. Pacholder
-------------------------------
Name: Xx. Xxxxx X. Xxxxxxxxx
Title: Chairman
