Exhibit (c)(2)
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of November 25,
1997, by and among Xxxx International Holdings, Inc., a Delaware corporation
("Parent"), and Xxxx X. Xxxxxxx (hereinafter referred to as "Stockholder").
W I T N E S S E T H:
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WHEREAS, concurrently herewith, Parent, Zephyros Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Purchaser"), and Deflecta-Shield Corporation, a Delaware corporation (the
"Company"), will enter into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"; capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement), pursuant to which
(and subject to the terms and conditions specified therein) Purchaser will make
a cash tender offer (as defined in the Merger Agreement, the "Offer") for all
outstanding shares of Common Stock, par value $.01 per share, of the Company
("Company Common Stock") and, following consummation of the Offer, Purchaser
will be merged with and into the Company, with the Company continuing as the
surviving corporation and as a wholly-owned subsidiary of Parent (the "Merger"),
whereby each share of Company Common Stock issued and outstanding immediately
prior to the Effective Time of the Merger will be converted into the right to
receive the Merger Consideration, other than (i) shares of Company Common Stock
owned, directly or indirectly, by the Company or any subsidiary of the Company
or by Parent, Purchaser or any other affiliate of Parent and (ii) Dissenting
Shares; and
WHEREAS, Stockholder is a stockholder of the Company and, as a
condition to Parent and Purchaser entering into the Merger Agreement, Parent
requires that Stockholder enter into, and Stockholder has agreed to enter into,
this Agreement with Parent.
NOW, THEREFORE, in consideration of the representations and warranties
and covenants set forth herein and in the Merger Agreement, Parent and
Stockholder, intending to be legally bound hereby each agree as follows:
1. Representations and Warranties of the Stockholder. Stockholder
hereby represents and warrants to Parent as follows:
1.1 Validity of Agreement. Stockholder has the legal capacity to
enter into and perform all of Stockholder's obligations under this Agreement.
This Agreement has been duly executed and delivered by Stockholder and
constitutes a valid and binding obligation of Stockholder enforceable against
Stockholder in accordance with its terms,
except that (a) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and (c) no representation is made with respect to the
enforceability, validity or binding effect of the third sentence of Section 4.1
under applicable provisions of the Exchange Act. If Stockholder is married, and
his Stockholder Shares (as hereinafter defined) constitute community property,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, Stockholder's spouse, enforceable
against such person in accordance with its terms (subject to the exceptions set
forth in the immediately preceding sentence).
1.2 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by Stockholder shall not (a) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which Stockholder
is a party or by which Stockholder or any of his properties or assets is
bound or affected or (b) violate any order, writ, injunction, decree or
judgment, specifically applicable by its terms to Stockholder or any of his
properties or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any state, federal or
foreign public body or authority is required by or with respect to
Stockholder in connection with the execution and delivery of this Agreement
by Stockholder or the consummation by Stockholder of any of the transactions
contemplated by this Agreement, except for filings pursuant to the Exchange
Act and except as may be required by the Merger. Without implication that the
following consent is required by that certain Voting Agreement, dated January
27, 1994, by and between Stockholder and Xxxxxxx X. Xxxxx (the
"Co-Stockholder"), Stockholder hereby (i) consents, if such consent is
required by the Voting Agreement, to Co-Stockholder entering into and
performing a stockholder agreement with Parent, of even date herewith (the
"Co-Stockholder Agreement"), substantially identical to this Agreement and
(ii) acknowledges and agrees that this Agreement and the Co-Stockholder
Agreement supersede the Voting Agreement with respect to the matters set
forth herein and in the Co-Stockholder Agreement. The parties hereto
acknowledge that Co-Stockholder is a third party beneficiary of the foregoing.
1.3 Ownership of Shares. (a) Stockholder is the record and/or
beneficial owner of that number of shares of Company Common Stock set forth
opposite Stockholder's name on Annex 1 attached hereto (such shares hereinafter
referred to as the "Existing Shares," and together with any shares of Company
Common Stock acquired of record or beneficially by Stockholder in any capacity
after the date hereof and prior to the termination hereof, whether upon exercise
of options, conversion of convertible securities, purchase, exchange or
otherwise, referred to as the "Stockholder Shares"). Notwithstanding the
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foregoing, neither the Existing Shares nor the Stockholder Shares include any
shares of Company Common Stock owned of record by Co-Stockholder.
(b) Except for shares of Company Common Stock owned by the
Co-Stockholder subject to the Voting Agreement, on the date hereof, the
Existing Shares constitute all of the outstanding shares of Company Common
Stock owned of record and/or beneficially by Stockholder.
(c) Except as provided by the Voting Agreement, Stockholder has
sole power of disposition with respect to all of the Existing Shares owned
by him and sole voting power with respect to the matters set forth in
Section 3.1 hereof and sole power to demand dissenter's or appraisal
rights, in each case with respect to all of the Existing Shares owned by
him with no restrictions on such rights, subject to any restrictions
imposed by applicable federal securities laws, Delaware law and the terms
of this Agreement.
(d) Except as provided by the Voting Agreement, Stockholder will
have sole power of disposition with respect to shares of Company Common
Stock other than Existing Shares, if any, which become beneficially owned
by Stockholder and will have sole voting power with respect to the matters
set forth in Section 3.1 hereof and sole power to demand dissenter's or
appraisal rights, in each case with respect to all such shares, if any,
which become beneficially owned by Stockholder with no restrictions on such
rights, subject to any restrictions imposed by applicable federal
securities laws and the terms of this Agreement.
1.4 No Encumbrances. The Existing Shares and the certificates
representing such shares are now, and the Stockholder Shares and the
certificates representing such shares at all times during the term hereof will
be, held by Stockholder, free and clear of all claims, liens, charges, security
interests, proxies, voting trusts or agreements, understandings or arrangements
and any other encumbrances of any kind or nature whatsoever, except as otherwise
provided in this Agreement and except as set forth in the Voting Agreement.
Certificates representing the Existing Shares contain legends reflecting the
Voting Agreement and the restrictions on transfer of Existing Shares under the
Securities Act.
1.5 Brokers and Intermediaries. No broker, investment banker,
financial adviser or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
Stockholder. It is agreed and acknowledged that the Company has retained
Xxxxxxxxxxx, Xxxxxxxx & Co. in connection with the Offer and the Merger and the
transactions contemplated by the Merger Agreement.
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1.6 Reliance. Stockholder understands and acknowledges that Parent
and Purchaser are entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement with Parent.
2. Representations and Warranties of Parent. Parent hereby
represents and warrants to Stockholder as follows:
2.1 Organization; Authorization; Validity of Agreement. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and
delivery of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Parent and no other corporate proceedings on the
part of Parent are necessary to authorize this Agreement or any of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Parent and constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms, except that (a) such
enforcement may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereafter in effect, affecting creditors' rights generally, and (b)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
2.2 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by Parent shall not (a) conflict with or
result in any breach of the certificate of incorporation or by-laws of Parent,
(b) result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent is a party or by which
Parent or any of its properties or assets is bound or affected or (c) violate
any order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Parent or any of Parent's properties or assets. Except as
provided in the Merger Agreement, no consent, approval, order or authorization
of, or registration, declaration or filing with, or notice to, any state,
federal or foreign public body or authority is required by or with respect to
Parent in connection with the execution and delivery of this Agreement by Parent
or the consummation by Parent of any of the transactions contemplated by this
Agreement.
2.3 Broker and Intermediaries. No broker, finder, investment banker
or other Person or entity, other than Xxxxx Xxxxxxx & Co., is entitled in
connection with the transactions contemplated by the Merger Agreement to any
broker's commission, finder's fee, investment banker's fee or similar payment in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of Parent or Purchaser.
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2.4 Reliance. Parent understands and acknowledges that Stockholder
is entering into this Agreement in reliance upon Parent's execution and delivery
of this Agreement with Stockholder and upon Parent's and Purchaser's execution
of the Merger Agreement.
3. Agreement to Vote. Stockholder, solely in his capacity as a
stockholder and not as a director, officer or employee of the Company, hereby
agrees that, until the Termination Date (as defined in Section 9), at any
meeting of the stockholders of the Company, however called at which the
following matters are considered for a vote, Stockholder shall vote (or cause to
be voted) the Stockholder Shares (a) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance hereof and thereof; (b)
against any action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or this Agreement; and (c) except as specifically
requested or agreed to in writing by Parent in advance, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company; (ii) a sale,
lease or transfer of a material amount of assets of the Company or
reorganization, recapitalization, dissolution or liquidation of the Company; and
(iii)(A) any change in the majority of the board of directors of the Company;
(B) any change in the present capitalization of the Company or any amendment of
the Company's Certificate of Incorporation or By-Laws; (C) any other material
change in the Company's corporate structure or business; or (D) any other action
which is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, discourage or adversely affect the Offer, the Merger or the
transactions contemplated by the Merger Agreement or this Agreement.
Stockholder shall not enter into any agreement with or grant any proxy to any
person or entity prior to the Termination Date to vote or give instructions in
any manner inconsistent with clauses (i), (ii) or (iii) of the preceding
sentence. The foregoing shall not limit or prohibit Stockholder from entering
into any agreement simultaneously with or after termination of this Agreement.
4. Certain Covenants of the Stockholder. Except in accordance with
the terms of this Agreement, Stockholder hereby agrees as follows:
4.1 Tender of Stockholder Shares. Stockholder agrees to tender and
sell to Purchaser all of the Stockholder Shares pursuant to and in accordance
with the terms of the Offer. Stockholder agrees that he shall deliver to the
depositary for the Offer, no later than the fifth Business Day (as defined
below) following the commencement of the Offer pursuant to Section 1.1 of the
Merger Agreement, a letter of transmittal together with any and all certificates
representing the Stockholder Shares owned by him (or such documentation as
required by the terms of the Offer with respect to lost stock certificates).
Notwithstanding
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any term of the Offer to the contrary, Stockholder agrees not to withdraw any
Stockholder Shares tendered into the Offer pursuant to this Section 4.1 during
the term of this Agreement. Stockholder hereby acknowledges and agrees that
Purchaser's obligation to accept for payment the Stockholder Shares in the Offer
is subject to the terms and conditions of the Offer. Stockholder hereby permits
Parent and Purchaser to publish and disclose in the Offer Documents (including,
without limitation, all documents and schedules filed with the SEC), the
identity of the Stockholder (subject, however, to the prior approval of
Stockholder which approval shall not be unreasonably withheld or delayed) and
the nature of his commitments, arrangements and understandings under this
Agreement. Notwithstanding anything in this Agreement to the contrary, the
foregoing shall not restrict a Stockholder from taking actions in his capacity
as a director, officer or employee of the Company to the extent and in the
circumstances permitted by the Merger Agreement or as required by applicable law
or by his fiduciary duty as a director, officer or employee of the Company. For
purposes of this Agreement, "Business Day" shall mean a day on which banks are
not required or authorized to be closed in the City of New York.
4.2 No Solicitation. Prior to the Termination Date, Stockholder
shall not (directly or indirectly through advisors, agents or other
intermediaries), (a) solicit or initiate inquiries, proposals or offers from any
Person (other than Parent or any of its affiliates) relating to any Takeover
Proposal or (b) in connection with any of the foregoing, enter into or
participate in any discussions (knowingly) or negotiations or furnish to any
other Person any information with respect to the business, properties or assets
of the Company or any of its Subsidiaries; provided, however, that the foregoing
shall not restrict Stockholder as a director, officer or employee of the Company
from taking actions in any such capacity to the extent and in the circumstances
permitted by the Merger Agreement or as required by applicable law or his
fiduciary duties as such director, officer or employee. If Stockholder receives
any inquiry or proposal, in his capacity as a Stockholder and with respect to
the Stockholder Shares, then Stockholder promptly shall inform Parent of the
terms and conditions, if any, of such inquiry or proposal and the identity of
the person making it. Stockholder immediately will cease and cause his
advisors, agents and other intermediaries to cease any and all existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing.
4.3 Restriction on Transfer, Proxies and Non-Interference;
Restriction on Withdrawal. Prior to the Termination Date, Stockholder shall not
directly or indirectly: (a) except pursuant to the terms of the Offer and the
Merger Agreement, and to Parent pursuant to this Agreement, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
enforce or permit the execution of the provisions of any redemption agreement
with the Company or enter into any contract, option or other binding agreement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, or other disposition of, or exercise any
discretionary powers to distribute, any or all of the Stockholder Shares owned
by him or any interest therein; (b) except as contemplated hereby, grant any
proxies or powers of attorney with respect to any
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Stockholder Shares, deposit any Stockholder Shares into a voting trust or enter
into a voting agreement with respect to any Stockholder Shares; or (c) take any
action that would make any representation or warranty of Stockholder contained
herein untrue or incorrect in any material respect or have the effect of
preventing or disabling Stockholder from performing its obligations under this
Agreement. Anything to the contrary in this Agreement notwithstanding,
Stockholder may sell, dispose of and/or transfer all or any portion of the
Stockholder Shares for tax, securities or estate planning purposes, for
charitable donation purposes or to any Section 501(c)(3) organization as long as
the purchaser or transferee of such Stockholder Shares under this subsection
agrees to be bound by the provisions of and becomes a party to this Agreement.
4.4 Waiver of Appraisal and Dissenter's Rights. Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that
Stockholder may have.
5. Third Party Business Combination.
If (a) the Merger Agreement is terminated in accordance with Section
8.1(f)(ii) or Section 8.1(h) of the Merger Agreement, (b) within three months
after the Merger Agreement is terminated, a contract or agreement relating to a
Third Party Business Combination, as defined below, is entered into and (c)
Stockholder receives, within twelve months after the Merger Agreement is
terminated, from any Person (other than Parent, Purchaser or any of their
affiliates) any cash or non-cash consideration in an amount per share greater
than $16.00 (the "Third Party Consideration") in respect of any sale or
disposition of all or any portion of the Stockholder Shares in connection with
and as part of a Third Party Business Combination, then Stockholder within two
(2) Business Days of receipt thereof shall pay to Parent or its designee an
aggregate amount equal to fifty percent (50%) of (A) the excess of the Third
Party Consideration over $16.00 multiplied by (B) the number of Stockholder
Shares with respect to which such Third Party Consideration was received;
provided that, (x) if the consideration received by Stockholder shall be
securities listed on a national securities exchange or traded on the NASDAQ
National Market ("NASDAQ"), the per share value of such consideration shall be
equal to the closing price per share listed on such national securities exchange
or NASDAQ National Market on the date such transaction is consummated, (y) if
the consideration received by Stockholder shall be in a form other than such
listed securities, the per share value shall be determined as of the date such
transaction is consummated in good faith by Parent or its designee and the
Stockholder or his designee or if the Parent and its designee and Stockholder
and his designee cannot reach agreement, by a nationally recognized investment
banking firm reasonably acceptable to the parties and (z) Stockholder will pay
Parent or its designee in kind and on a pro rata basis (i.e., if the Third Party
Consideration includes cash, listed securities and/or other consideration,
Parent or its designee will receive its pro rata portion of each such item).
The term "Third Party Business Combination" means the occurrence of any of the
following events: (i) the Company or any Subsidiaries whose assets constitute
all or substantially all of
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the business or assets of the Company is acquired by merger or otherwise by any
person or group, other than Parent or any affiliate thereof (a "Third Party");
(ii) the sale to a Third Party of all or substantially all of the business or
assets of the Company and its Subsidiaries, taken as a whole; and (iii) the
Company, or Stockholder and Co-Stockholder enter into a merger or other
agreement with a Third Party which contemplates, in a single transaction or
series of related transactions, the acquisition of all or substantially all of
the Stockholder Shares and the Shares owned by the Co-Stockholder.
6. Further Assurances. From time to time, at any other party's
reasonable request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary to consummate and make effective the transactions
contemplated by this Agreement.
7. Certain Events. Stockholder agrees, to the extent permitted by
applicable law, that this Agreement and the obligations hereunder shall attach
to all Stockholder Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of such Stockholder Shares shall pass,
whether by operation of law or otherwise.
8. Stop Transfer. Except in connection with transfers permitted
under Section 4.3, Stockholder agrees with, and covenants to Parent that it
shall not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Stockholder Shares.
9. Termination. All obligations of Stockholder under this
Agreement, except for the obligations under Section 5 above (which obligations
will only survive for the period set forth therein), shall terminate upon the
first to occur of (a) the acceptance for payment of Stockholder Shares in the
Offer, (b) the Effective Time of the Merger and (c) the time the Merger
Agreement is terminated in accordance with its terms (such earlier time being
the "Termination Date").
10. Miscellaneous.
10.1 Entire Agreement; Assignment. This Agreement (a) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and (b)
shall not be assigned by operation of law or otherwise without the prior written
consent of the other parties, provided that Parent may assign, in its sole
discretion, its rights and obligations hereunder to any affiliate of Parent, but
no such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
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10.2 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
10.3 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 received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
(a) if to Parent, to
Xxxx International Holdings, Inc.
000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. XxXxxxx
with a copy to
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
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(b) if to the Stockholder, to
Xxxx X. Xxxxxxx
000 X. Xxxxxx Xxxxx
Xxxx #0
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention:
with a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
10.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
10.5 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement.
10.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
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10.7 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
10.8 Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
10.9 Definitions. For purposes of this Agreement:
(a) "beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act). Except as otherwise
referred to herein, without duplicative counting of the same securities by the
same holder, securities beneficially owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would constitute a
"group" as described in Section 13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or other entity.
(c) In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Stockholder Shares" shall be deemed to refer to and include the Stockholder
Shares as well as all such stock dividends and distributions and any shares into
which or for which any or all of the Stockholder Shares may be changed or
exchanged.
10.10 Stockholder Capacity. Notwithstanding anything in this
Agreement to the contrary, if and to the extent that Stockholder is or becomes
during the term hereof a director, officer or employee of the Company,
Stockholder makes no agreement or understanding herein in his or her capacity as
such director, officer or employee, and the agreements set forth herein shall in
no way restrict any director, officer or employee of the Company in the exercise
of his or her fiduciary duties as such director, officer or employee of the
Company. Stockholder has executed this Agreement solely in his capacity as the
record and/or beneficial holder of Stockholder Shares. To the extent that the
Company or its directors, officers, or agents are permitted to engage in
discussions or negotiations with
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respect to any Takeover Proposal (or any inquiry or proposal with respect
thereto) pursuant to the Merger Agreement, Stockholder, in his capacity as such,
also shall be entitled, notwithstanding anything to the contrary contained in
this Agreement, to participate in such discussions and negotiations, including
without limitation, with respect to Existing Shares and the Stockholder Shares
and the related matters subject to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
XXXX INTERNATIONAL HOLDINGS, INC.
By:
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Name:
Title:
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Xxxx X. Xxxxxxx
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