EXHIBIT 10.1
STOCKHOLDERS' VOTING AGREEMENT
STOCKHOLDERS' VOTING AGREEMENT, dated as of January 27, 2002, among
J Holdings Corp., a Delaware corporation ("Parent"), J Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent (the "Purchaser"),
Xxxxx Xxxxx, Inc., a Delaware corporation (the "Company"), and the stockholders
named in Exhibit A hereto (each, a "Stockholder" and collectively, the
"Stockholders").
WHEREAS, simultaneously herewith, Parent and the Purchaser are entering
into an Agreement and Plan of Merger, dated as of the date hereof (as amended
from time to time, the "Merger Agreement"), with the Company, which
contemplates, among other things, that the Purchaser will merge with and into
the Company pursuant to the merger contemplated by the Merger Agreement (the
"Merger"); capitalized terms used but not otherwise defined herein shall have
the meanings set forth in the Merger Agreement, whether or not such Merger
Agreement shall be in effect from time to time;
WHEREAS, as of the date hereof, each Stockholder owns beneficially and,
to the extent indicated on Exhibit A hereto, of record the number of shares of
Company Common Stock set forth opposite such Stockholder's name on Exhibit A
hereto (all such shares owned by the Stockholders and any shares of Company
Common Stock hereafter acquired by any Stockholder prior to the termination of
this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise being referred to herein as the
"Shares"); and
WHEREAS, as a condition to the willingness of Parent and the Purchaser
to enter into the Merger Agreement, Parent and the Purchaser have requested that
each Stockholder agree, and in order to induce Parent and the Purchaser to enter
into the Merger Agreement, each Stockholder has agreed, jointly and severally,
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
VOTING AGREEMENT
SECTION 1.1 Voting Agreement. Each Stockholder hereby agrees that,
during the period commencing on the date hereof and continuing until the first
to occur of the Effective Time or the termination of the Merger Agreement in
accordance with its terms, at any meeting of the stockholders of the Company,
however called, each Stockholder shall vote his, her or its Shares (a) in favor
of the approval and adoption of the Merger Agreement, the Merger and all the
transactions contemplated by the Merger Agreement and this Agreement and any
other actions required in furtherance thereof and hereof,
(b) against any action or agreement that would result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Merger Agreement; and (c) except as otherwise expressly
agreed to in writing in advance by the Parent, against: (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its Subsidiaries (other than the
Merger and the transactions contemplated by the Merger Agreement); (B) a sale,
lease or transfer of a material amount of assets of the Company or any of its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its Subsidiaries; (C) any change in a majority of the
persons who constitute the board of directors of the Company; (D) any change in
the present capitalization of the Company or any amendment of the Company's
certificate of incorporation or bylaws; (E) any other material change in the
Company's corporate structure or business; or (F) any other action involving the
Company or any of its Subsidiaries which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Merger and the transactions contemplated by the Merger Agreement, including,
without limitation, any action to approve or facilitate any Acquisition
Proposal. No Stockholder shall enter into any agreement or understanding with
any person or entity the effect of which would be inconsistent with or violative
of the provisions and agreements contained in this Agreement, including, without
limitation, in this Section 1.1.
SECTION 1.2 Irrevocable Proxy. Each Stockholder hereby irrevocably
constitutes and appoints each of Xxxxx Xxxx, Ezra Field and Parent, during the
period commencing on the date hereof and continuing until the earlier of (x) the
Effective Time or (y) the termination of the Merger Agreement in accordance with
its terms, as his, her or its attorney and proxy pursuant to the provisions of
Section 212(c) of the Delaware General Corporation Law ("DGCL"), with full power
of substitution, to vote and otherwise act with respect to the Shares which such
Stockholder is entitled to vote at any meeting of stockholders of the Company
(whether annual or special and whether or not an adjourned or postponed meeting)
on, and only on, the matters described in Section 1.1 and to execute and deliver
any and all consents, instruments or other agreements or documents in order to
take any and all such actions required to be taken by Stockholder as set forth
in this Agreement. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE, AND COUPLED
WITH AN INTEREST. Each Stockholder hereby revokes all other proxies and powers
of attorney with respect to such Stockholder's Shares that it may have
heretofore appointed or granted, and no subsequent proxy or power of attorney
shall be given or written consent executed (and if given or executed, shall not
be effective) by such Stockholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of a
Stockholder and any obligation of such Stockholder under this Agreement shall be
binding upon the heirs, personal representatives, successors and assigns of such
Stockholder, and shall not terminate until the earlier of the Effective Time or
the termination of the Merger Agreement in accordance with its terms. Each
Stockholder hereby authorizes all that each such 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
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Section 212(e) of the Delaware General Corporation Law. Each Stockholder
represents, severally as to itself and not jointly, that any proxies heretofore
given in respect of such Stockholder's Shares or any other voting securities of
the Company are not irrevocable and hereby revokes any and all previous proxies
with respect to the Shares or any other voting securities of the Company. The
Stockholders acknowledge and agree that any proxy holder may vote the Shares at
the Special Meeting.
Notwithstanding anything herein to the contrary, this Agreement shall
not apply or in any way bind or restrict The Sid and Xxxxx Xxxxx Foundation or
the Foundation Shares (as defined in Exhibit A).
ARTICLE II
CAPTURE
SECTION 2.1 Capture. In order to induce Parent and the Purchaser to
enter into the Merger Agreement, during the term of this Agreement, each of the
Stockholders agrees to the matters set forth in this Article II with respect to
such Stockholder's Shares:
(a) Capture. The Stockholders agree, jointly and severally, to
pay to Parent on demand, in cash, an amount equal to fifty percent (50%) of the
first $13,838,600 of Stockholder Profit (as defined below) and twenty percent
(20%) of all such Stockholder Profit in excess of $13,838,600 of such
Stockholder Profit from the consummation after a Capture Termination (as defined
below) of any Acquisition Proposal (a "Capture Acquisition Proposal") that is
consummated within twelve (12) months of a Capture Termination Date (as defined
below), if any, or as to which a definitive agreement is entered into within
twelve (12) months of a Capture Termination Date, if any, and consummated on or
prior to June 30, 2003. The Capture Termination Date is the date of termination
of the Merger Agreement as the result of a Capture Termination. A "Capture
Termination" means a termination of the Merger Agreement (1) by the Company
pursuant to Section 7.1(c)(i) of the Merger Agreement or (2) by Parent pursuant
to Section 7.1(d)(i)(B) or Section 7.1(d)(i)(C) of the Merger Agreement (or
Section 7.1(d)(i)(D) to the extent the resolution takes the action described in
Section 7.1(d)(i)(B) or (C) of the Merger Agreement); provided that, in any such
case, at the time of such termination, the Company is not entitled to terminate
the Merger Agreement by reason of Section 7.1(b)(i), Section 7.1(b)(ii), Section
7.1(c)(ii) or Section 7.1(c)(iii) of the Merger Agreement. The "Stockholder
Profit" of any Stockholder from the consummation of any Capture Acquisition
Proposal shall equal (A) the aggregate consideration received by such
Stockholder pursuant to such Capture Acquisition Proposal, valuing any non-cash
consideration (including any direct or indirect residual interest in the
Company) at its fair market value on the day immediately preceding the date of
such consummation plus (B) the fair market value, on the date of disposition, of
all Shares of such Stockholder disposed of after the Capture Termination Date
and prior to the date of consummation of the Capture Acquisition Proposal less
(C) Seventy-Three Million Three Hundred Forty-Four Thousand Five Hundred Eighty
Dollars ($73,344,580) (the "Original Merger Consideration"). Notwithstanding
anything herein to the contrary,
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(x) no capture amount pursuant to this Section 2.1(a) shall be payable by any of
the Stockholders hereunder unless a Capture Acquisition Proposal is consummated
on or prior to June 30, 2003 and (y) no such amount shall be payable other than
at the time of consummation of the Capture Acquisition Proposal.
(i) In the event that (x) prior to the Effective Time,
an Acquisition Proposal shall have been made and (y) the Effective Time of the
Merger shall have occurred and the Parent for any reason shall have increased
the amount of the Original Merger Consideration in connection with such
Acquisition Proposal, each Stockholder shall pay to the Parent on demand an
amount in cash equal to the product of (A) the number of Shares of such
Stockholder and (B) fifty percent (50%) of the first $1.00 of Excess
Consideration (as defined below) and twenty percent (20%) of such Excess
Consideration in excess of $1.00. The term "Excess Consideration" means the
excess, if any, of (1) the per share cash consideration or the per share fair
market value of any non-cash consideration, determined as of the Effective Time
of the Merger as the case may be, actually received by the Stockholder as a
result of the Merger, over (2) $5.30.
(b) For purposes of Section 2.1(a) hereof, the fair market value
of any non-cash consideration consisting of:
(i) securities listed on a national securities exchange
or traded on the NASDAQ/NMS shall be equal to the average closing price per
share of such security as reported on such exchange or NASDAQ/NMS for the five
trading days after the date of determination; and
(ii) consideration which is other than cash or
securities of the form specified in clause (i) of this Section 2.1(b) shall be
determined by a nationally recognized independent investment banking firm
mutually agreed upon by the parties within ten Business Days of the event
requiring selection of such banking firm; provided, however, that if the parties
are unable to agree within two Business Days after the date of such event as to
the investment banking firm, then the parties shall each select one firm, and
those firms shall select a third investment banking firm, which third firm shall
make such determination; provided further, that the fees and expenses of such
investment banking firm shall be borne equally by the Parent, on the one hand,
and the Stockholders, on the other hand. The determination of the investment
banking firm shall be binding upon the parties.
(c) Any payment under this Section 2.1 shall (x) if paid in
cash, be paid by wire transfer of same day funds to an account designated by the
Parent and (y) if paid through a mutually agreed transfer of securities, be paid
through delivery of such securities, suitably endorsed for transfer.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Stockholders. The
Stockholders, jointly and severally, represent and warrant to the Parent as
follows:
(a) Each entity Stockholder is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has the requisite corporate power and authority to enter into and deliver this
Agreement and to carry out its obligations hereunder. Each individual
Stockholder has the requisite power, authority and legal capacity to enter into
and deliver this Agreement and to carry out its obligations hereunder. This
Agreement has been duly executed and delivered by each Stockholder and, assuming
its due authorization, execution and delivery by Parent and the Purchaser, is a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms.
(b) The execution and delivery of this Agreement by each
Stockholder does not, and the performance of this Agreement by each Stockholder
will not, (i) conflict with or violate any applicable statutes, laws,
ordinances, rules or regulations or (ii) conflict with or violate any contract
or other instrument to which the Stockholder is a party or by which such
Stockholder is bound, including, without limitation, any voting agreement,
stockholders agreement or voting trust.
(c) The execution and delivery of this Agreement by each
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, require any Stockholder to obtain any consent, approval, authorization
or permit of, or to make any filing with or notification to, any person or
Governmental Entity, except as may be required by the Exchange Act and the HSR
Act.
(d) There is no suit, action, investigation or proceeding
pending or, to the knowledge of each Stockholder, threatened, against such
Stockholder at law or in equity before or by any Governmental Entity that could
reasonably be expected to impair the ability of such Stockholder to perform its
obligations hereunder, and there is no judgment, decree, injunction, rule, order
or writ of any Governmental Entity to which such Stockholder is or its assets
are subject that could reasonably be expected to impair the ability of such
Stockholder to perform its obligations hereunder.
(e) Each Stockholder owns beneficially and of record the shares
of Company Common Stock set forth opposite such Stockholder's name on Exhibit A
hereto (with respect to such Stockholder, the "Existing Shares"). The Existing
Shares constitute all the shares of Company Common Stock owned beneficially and
of record by such Stockholder. Each Stockholder has sole voting power, sole
power of disposition, sole power to demand appraisal rights and all other
stockholder rights with respect to all of its Existing Shares, with no
restrictions, other than restrictions on disposition pursuant to
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applicable securities laws, on such Stockholder's rights of voting or
disposition pertaining thereto.
(f) Each Stockholder acknowledges that such Stockholder is an
informed and sophisticated investor and, together with such Stockholder's
advisors, has undertaken such investigation as they have deemed necessary,
including the review of the Merger Agreement and this Agreement, to enable such
Stockholder to make an informed and intelligent decision with respect to the
Merger Agreement and this Agreement and the transactions contemplated thereby
and hereby. No Stockholder will seek rescission or revocation of this Agreement
or seek to withdraw or revoke any vote, irrevocable proxy or irrevocable
instruction delivered by it or on its behalf in connection therewith.
(g) Except as applicable in connection with the transactions
contemplated hereby, each Stockholder's Shares and the certificates representing
such Shares are now, and at all times during the term hereof will be, held by
such Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder in favor of the Parent.
SECTION 3.2 Survival. Notwithstanding anything otherwise provided for
herein, each Stockholder's representations and warranties contained in this
Article III shall be true and correct as of the date Parent or the Purchaser, as
the case may be, consummates the Merger.
ARTICLE IV
COVENANTS OF THE STOCKHOLDERS
SECTION 4.1 No Solicitation. Each Stockholder shall cease, and shall
instruct and use its best efforts to cause each of their respective affiliates,
directors, officers, employees, agents and representatives (including without
limitation any investment banker, financial advisor, attorney, accountant or
other representative retained by such Stockholder) to immediately cease, any
discussions or negotiations with any other parties that may be ongoing with
respect to any Acquisition Proposal. Each Stockholder will not, directly or
indirectly, and will instruct and use its best efforts to cause each of their
respective officers, directors, employees, investment bankers, attorneys and
other agents retained by or acting on behalf of such Stockholder not to,
directly or indirectly (i) initiate, solicit, or encourage, any inquiries, any
expression of interest or the making of any proposal which constitutes or is
reasonably likely to constitute any Acquisition Proposal, (ii) engage in
negotiations or discussions with, or furnish any information, data or assistance
to any third party relating to any Acquisition Proposal or (iii) enter into any
agreement with respect to any Acquisition Proposal or approve any Acquisition
Proposal. Anything in this Section 4.1 to the contrary notwithstanding, nothing
in this Section 4.1 shall limit in any way a Stockholder who is an officer or
director of the Company from exercising any of his rights or performing any of
his duties as an officer or director of the Company. Notwithstanding anything to
the contrary contained herein, Xxxxxx Xxxxx,
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Xxxxx Xxxxx and each other Stockholder may, at the request of the Board or the
Special Committee thereof, provided the Board or Special Committee is acting in
accordance with the provisions of Section 5.5(b) of the Merger Agreement,
participate in negotiations or discussions and furnish information, data or
assistance to a third party in connection with an Acquisition Proposal.
SECTION 4.2 Restriction on Transfer. Until and unless this Agreement has
been terminated, each Stockholder shall not, except as expressly provided for in
this Agreement (a) sell, exchange, pledge, encumber or otherwise transfer or
dispose of, or agree to sell, exchange, pledge, encumber or otherwise transfer
or dispose of, any of its Shares, or any interest therein, (b) deposit its
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to such Shares or grant any proxy with respect thereto or (c) enter into
any agreement, arrangement, understanding, or undertaking to do any of the
foregoing. Notwithstanding the foregoing, each Stockholder may transfer Shares
owned by such Stockholder to any corporation, partnership or limited liability
company of which all of the issued and outstanding voting and equity securities
are beneficially owned by Xxxxx Enterprises, Inc. ("CEI"), but only if all of
the issued and outstanding voting and equity securities of CEI are beneficially
owned by Xxxxxx Xxxxx and/or Xxxxx Xxxxx. Any such transferee shall agree in
writing to be bound by this Agreement as if he, she or it were a signatory
hereto, and no such transfer shall relieve any Stockholder of his, her or its
obligations hereunder. CEI hereby agrees that it shall not transfer nor cause or
permit any such transferee to transfer any Shares in violation of this Section
4.2 and hereby agrees to take any necessary action in order to comply with the
provisions of this Section 4.2. No transfer in violation of this Agreement shall
be made or recorded on the books of the Company and any such transfer shall be
void and of no force or effect. Notwithstanding anything to the contrary herein,
SJF Enterprises, Inc. ("SJF") may consummate the SJF Contribution (as defined in
the Merger Agreement) in accordance with the terms of its Commitment Letter to
Parent, of even date herewith.
SECTION 4.3 Waiver of Appraisal Rights. Each Stockholder hereby waives
any appraisal or other rights to dissent from the Merger that such Stockholder
may have.
SECTION 4.4 Reliance by Parent. Each Stockholder understands and
acknowledges that Parent is entering into, and causing the Purchaser to enter
into, the Merger Agreement in reliance upon such Stockholder's execution and
delivery of this Agreement.
SECTION 4.5 Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
SECTION 4.6 Stockholder Capacity. No person executing this Agreement who
is or becomes during the term hereof a director or officer of the Company makes
any
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agreement or understanding herein in his or her capacity as such director or
officer. Each Stockholder signs solely in his or her capacity as the record and
beneficial owner of such Stockholder's Shares.
SECTION 4.7 Stop Transfer. Each Stockholder agrees with, and covenants
to, the Parent that during the term of this Agreement, such Stockholder shall
not request that the Company register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of such
Stockholder's Shares, unless such transfer is made in compliance with this
Agreement (including the provisions of Article 2 hereof). 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 "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged.
SECTION 4.8 Termination. This Agreement shall terminate upon the earlier
of (a) the Effective Time or (b) the termination of the Merger Agreement in
accordance with its terms; provided, however, that the obligations of the
Stockholders set forth in Article II hereof shall survive a Capture Termination
and shall be enforceable in accordance with the terms of Article II hereof;
provided, further, however, that nothing in this Section 4.8 shall relieve the
parties hereto of any liability for a breach of or a default under this
Agreement.
SECTION 4.9 No Written Consent. Parent, Purchaser and the Stockholders
agree that the Stockholders will vote their respective Shares on the approval
and adoption of this Agreement at a meeting of the stockholders of the Company,
and that the Stockholders will not take any action by written consent or
otherwise on the approval or adoption of this Agreement with respect to such
Shares other than at the Special Meeting. Parent and Purchaser each agree that
they will not vote (or cause to be voted) the Shares owned by the Stockholders,
other than at a meeting of the stockholders of the Company and will not take any
action by written consent or otherwise with respect to such Shares in lieu of a
meeting or otherwise (or cause any such action to be taken).
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ARTICLE V
DEFINITIONS
SECTION 5.1 Definitions. For the purpose of this Agreement,
"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), including pursuant to any
agreement, arrangement or understanding, whether or not in writing, subject to
any fiduciary duty in the case of securities not held of record.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Severability. If any term or other provision of this
Agreement is or is deemed to be invalid, illegal or incapable of being enforced
by any applicable rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of this Agreement is 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 so that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
SECTION 6.2 Entire Agreement. This Agreement constitutes the entire
understanding between Parent, the Purchaser and each Stockholder with respect to
the subject matter hereof and thereof and supersedes all prior agreements and
understandings, both written and oral, between Parent, the Purchaser and each
Stockholder with respect to the subject matter hereof and thereof.
SECTION 6.3 Certain Events. Each Stockholder agrees that this Agreement,
including without limitation the proxy granted pursuant to Section 1.2, and the
obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person 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, representatives, administrators
or successors. Notwithstanding any transfer of Shares, the transferor shall
remain liable for the performance of all obligations under this Agreement of the
transferor.
SECTION 6.4 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
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
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SECTION 6.5 Mutual Drafting. Each party hereto has participated in the
drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
SECTION 6.6 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto, provided that Parent may assign its rights hereunder to any
direct or indirect wholly owned subsidiary of Parent, but no such assignment
shall relieve Parent of its obligations hereunder if such assignee does not
perform such obligations.
SECTION 6.7 Amendments. This Agreement may not be amended, supplemented,
waived or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto.
SECTION 6.8 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 delivery in person, facsimile
transmission, registered or certified mail (postage prepaid, return receipt
requested), or courier service providing proof of delivery to the respective
parties at the following addresses (or to such other address for a party as
shall be specified in a notice given in accordance with this Section 6.8).
If to Parent or the Purchaser:
J Holdings Corp.
J Acquisition Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
If to the Stockholders:
00000 Xxx Xxxxxxxx Xxxx
Xxxxxx Xxxxx Xx, XX 00000
Telecopy No.: (000) 000-0000
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Attention:
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Company:
Xxxxx Xxxxx, Inc.
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention:
SECTION 6.9 No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any person or entity
not a party hereto; provided however, that the parties hereto acknowledge that
the Company is intended to be a beneficiary of, and shall be entitled to rely
on, the covenants and agreements contained in Section 4.9 hereof.
SECTION 6.10 Specific Performance. Each of the parties hereto
acknowledges that a breach by it of any agreement contained in this Agreement
will cause the other party to sustain damage for which it would not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such agreement and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
SECTION 6.11 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other right, power or remedy by such party.
SECTION 6.12 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon strict compliance by any
other party hereto with its obligations hereunder, and any custom or practice of
the parties at variance with the terms hereof, shall not constitute a waiver by
such party of its rights to exercise any such or other right, power or remedy or
to demand such compliance.
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SECTION 6.13 Governing Law.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to the
principles of conflicts of law.
(b) Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this subsection (b) and shall not be deemed to be
a general submission to the jurisdiction of such court or in the State of
Delaware other than for such purposes.
SECTION 6.14 Waiver of Jury Trial. EACH OF PARENT, PURCHASER AND THE
STOCKHOLDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, PURCHASER
OR THE STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
SECTION 6.15 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.
[Signatures on Following Page]
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IN WITNESS WHEREOF, Parent, the Purchaser and each Stockholder have
caused this Agreement to be duly executed as of the date first above written.
J HOLDINGS CORP.
By: /s/ XXXXX X. XXXX
-------------------------------
Name: Xxxxx X. Xxxx
Title: President
J ACQUISITION CORP.
By: /s/ XXXXX X. XXXX
-------------------------------
Name: Xxxxx X. Xxxx
Title: President
/s/ XXX XXXXX
-------------------------------
Xxxxxx Xxxxx
/s/ XXXXX XXXXX
-------------------------------
Xxxxx Xxxxx
XXXXX ENTERPRISES, INC.
By: /s/ XXX XXXXX
-------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman
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SJF ENTERPRISES, INC.
By: /s/ XXX XXXXX
-------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman
DA HOLDINGS, INC.
By: /s/ XXX XXXXX
-------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman
XXXXX XXXXX, INC.
By: /s/ XXX XXXXX
-------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman and Chief
Executive Officer
[Solely with Respect to Sections
4.2, 4.7 and 4.9 hereof]
14
Exhibit A
Name Shares
---- ------
Xxxxxx Xxxxx(1) 13,838,600
Xxxxx Xxxxx(1) 13,838,600
Xxxxx Enterprises, Inc. (1) 13,838,600
SJF Enterprises, Inc.(2) 13,838,600
DA Holdings, Inc. 1,950,000
(1) 13,838,600 of these shares are beneficially owned by SJF Enterprises, Inc.
("SJF"), and 373,900 are owned beneficially and directly by The Xxxxxx and
Xxxxx Xxxxx Foundation (the "Foundation Shares"). Xxxxxx and Xxxxx Xxxxx
own all of the outstanding voting and equity securities of Xxxxx
Enterprises, Inc. which owns all of the outstanding voting and equity
securities of SJF.
(2) Of the 13,838,600 shares beneficially owned by SJF, 11,888,600 are owned
directly by SJF and 1,950,000 are owned directly by DA Holdings, Inc., all
of the outstanding voting and equity securities of which are owned by SJF.
15
