SUPPORT AGREEMENT
Exhibit 10.1
THIS SUPPORT AGREEMENT (this “Agreement”), dated as of February 17, 2007, is entered
into by and among Altra Holdings, Inc., a Delaware corporation (“Parent”), Forest
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent
(“Purchaser”), and Xxxxxx X. Xxxxx, a United States citizen (“Stockholder”).
Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the
Merger Agreement (as defined below).
WHEREAS, concurrently with the execution of this Agreement, XX Xxxx’x Corporation, a Delaware
corporation (the “Company”), Parent and Purchaser are entering into an Agreement and Plan
of Merger of even date herewith (the “Merger Agreement”);
WHEREAS, as of the date hereof, Stockholder is the record and beneficial owner of 1,600,000
shares of common stock, $0.01 par value, of the Company (the “Stockholder Shares”); and
WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and
Purchaser have required that Stockholder enter into this Agreement and, in order to induce Parent
and Purchaser to enter into the Merger Agreement, Stockholder is willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Agreement to Tender. Stockholder shall (a) as promptly as practicable and in any
event within ten (10) Business Days of the commencement of the Offer, validly tender, or cause to
be tendered, all of the Stockholder Shares pursuant to and in accordance with the terms of the
Offer, and (b) not withdraw any Stockholder Shares from the Offer, unless and until (i) the Offer
shall have been terminated by Purchaser in accordance with the terms of the Merger Agreement, or
(ii) this Agreement shall have been terminated in accordance with Section 5.
2. Representations and Warranties of Stockholder. Stockholder hereby represents and
warrants to Parent and Purchaser as follows:
(a) Authority. Stockholder has all necessary power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution, delivery and
performance by Stockholder of this Agreement and the transactions contemplated hereby have been
duly authorized and approved by all necessary action on the part of Stockholder and no further
action on the part of Stockholder is necessary to authorize the execution and delivery by
Stockholder of this Agreement or the performance by Stockholder of its obligations hereunder. This
Agreement has been duly executed and delivered by Stockholder and, assuming due and valid
authorization, execution and delivery hereof by Parent and Purchaser, constitutes a valid and
binding obligation of Stockholder,
enforceable against Stockholder in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium and other similar applicable Law affecting
creditors’ rights generally and by general principles of equity.
(b) Consents and Approvals; No Violations. No consents or approvals of, or filings,
declarations or registrations with, any Governmental Entity are necessary for the performance by
Stockholder of its obligations under this Agreement, other than such consents, approvals, filings,
declarations or registrations that, if not obtained, made or given, would not, individually or in
the aggregate, reasonably be expected to prevent or materially delay the performance by Stockholder
of any of its obligations under this Agreement. Neither the execution and delivery of this
Agreement by Stockholder nor the performance by Stockholder with its obligations hereunder, will
(i) violate any applicable Law or order applicable to such Stockholder, or (ii) require the consent
or other action by any Person under, constitute default under or result in the termination of or a
right of termination or cancellation under, accelerate the performance required by, or result in
the creation of any Lien upon any of the properties or assets of, Stockholder under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license,
permit, lease, agreement or other instrument or obligation to which Stockholder is a party, or its
assets may be bound or affected, except for such violations, conflicts, losses, defaults,
terminations, cancellations, accelerations or Liens as would not, individually or in the aggregate,
reasonably be expected to prevent or delay the performance by Stockholder of any of its obligations
under this Agreement.
(c) Ownership of Shares. Stockholder owns, beneficially and of record, all of the
Stockholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien
(other than proxies and restrictions in favor of Parent and Purchaser pursuant to this Agreement
and except for such transfer restrictions of general applicability as may be provided under the
Securities Act and the “blue sky” Laws of the various states of the United States). Without
limiting the foregoing, except for proxies and restrictions in favor of Parent and Purchaser
pursuant to this Agreement and except for such transfer restrictions of general applicability as
may be provided under the Securities Act and the “blue sky” Laws of the various states of the
United States, Stockholder has sole voting power and sole power of disposition with respect to all
Stockholder Shares, with no restrictions on Stockholder’s rights of voting or disposition
pertaining thereto and no Person other than Stockholder has any right to direct or approve the
voting or disposition of any Stockholder Shares.
(d) Brokers. Except for Sagent Advisors Inc., no broker, investment banker, financial
advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar
fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in
connection with the transactions contemplated by the Merger Agreement based upon arrangements made
by or on behalf of Stockholder.
(e) Reliance by Parent. Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon Stockholder’s execution and delivery of this
Agreement.
2
3. Additional Covenants of the Stockholder. Stockholder hereby covenants and agrees
that:
(a) Restriction on Transfer; Proxies; Non-Interference. From the date hereof until
any termination of this Agreement in accordance with its terms, except as provided hereunder or
under the Merger Agreement, such Stockholder shall not, directly or indirectly, (i) sell, transfer
(including by operation of Law), give, pledge, encumber, assign or otherwise dispose of (including,
without limitation, any Constructive Disposition (as defined below)), or enter into any Contract,
option or other arrangement or understanding with respect to the sale, transfer, gift, pledge,
encumbrance, assignment or other disposition of, any Stockholder Shares (or any right, title or
interest thereto or therein), (ii) deposit any Stockholder Shares into a voting trust or grant any
proxies or enter into a voting agreement, power of attorney or voting trust with respect to any
Stockholder Shares, (iii) take any action that would make any representation or warranty of
Stockholder set forth in this Agreement untrue or incorrect in any material respect or have the
effect of preventing, disabling or delaying Stockholder from performing any of its obligations
under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred
to in the foregoing clauses (i), (ii) or (iii) of this Section 3(c). As used herein, the term
“Constructive Disposition” means, with respect to any Stockholder Shares, a short sale with
respect to such security, entering into or acquiring an offsetting derivative contract with respect
to such security, entering into or acquiring a futures or forward contract to deliver such security
or entering into any other hedging or other derivative transaction that has the effect of
materially changing the economic benefits and risks of ownership.
(b) Publication. Stockholder agrees promptly to give to Parent any information it may
reasonably require for the preparation of the Offer Documents.
4. Representations and Warranties of Parent and Merger Subsidiary. Parent and
Purchaser jointly and severally represent and warrant to Stockholder as follows:
(a) Due Authorization. This Agreement has been authorized by all necessary corporate
action on the part of each of Parent and Purchaser and has been duly executed by a duly authorized
officer of each of Parent and Purchaser.
(b) Validity; No Conflict. This Agreement constitutes the legal, valid and binding
obligation of each of Parent and Purchaser, enforceable against each of them in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to creditors’ rights generally and by general principles of
equity. Neither the execution of this Agreement by Parent and Purchaser nor the consummation of
the transactions contemplated hereby will result in a breach or violation of the terms of any
agreement by which Parent or Purchaser is bound or of any decree, judgment, order, law or
regulation now in effect of any court or other governmental body applicable to Parent or Purchaser.
5. Termination. This Agreement shall terminate on the first to occur of (a) provided
that the Company pays Parent the Termination Fee prior to or simultaneously with such termination
(if and only to the extent applicable), the termination of the Merger Agreement in accordance with
its terms, (b) the Effective Time and (c) termination of the
3
Offer. Notwithstanding the foregoing, (i) nothing herein shall relieve any party from
liability for fraud or any willful breach of this Agreement and (ii) the provisions of this Section
5, Section 6 and Section 2 of this Agreement, shall survive any termination of this Agreement.
6. Miscellaneous.
(a) Expenses. Except as otherwise expressly provided in this Agreement, all costs and
expenses incurred in connection with the transactions contemplated by this Agreement shall be paid
by the party incurring such costs and expenses.
(b) Additional Shares. Until any termination of this Agreement in accordance with its
terms, Stockholder shall promptly notify Parent of the number of shares of Company common stock, if
any, as to which Stockholder acquires record or beneficial ownership after the date hereof. Any
shares of Company common stock as to which Stockholder acquires record or beneficial ownership
after the date hereof and prior to termination of this Agreement shall be Stockholder Shares for
purposes of this Agreement. Without limiting the foregoing, in the event of any stock split, stock
dividend or other change in the capital structure of the Company affecting the Company common
stock, the number of shares of Company Common Stock constituting Stockholder Shares shall be
adjusted appropriately and this Agreement and the obligations hereunder shall attach to any
additional shares of Company common stock or other voting securities of the Company issued to
Stockholder in connection therewith.
(c) Definition of “Beneficial Ownership”. For purposes of this Agreement, “beneficial
ownership” with respect to (or to “own beneficially”) 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.
(d) Further Assurances. From time to time, at the request of Parent and without
further consideration, Stockholder shall execute and deliver such additional documents and take all
such further action as may be reasonably required to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
(e) Survival of Representations and Warranties. The representations and warranties
contained herein and in any certificate or other writing delivered pursuant hereto shall not
survive the Effective Time.
(f) Amendments; Waiver. This Agreement may not be amended or supplemented, except by
a written agreement executed by the parties hereto. Any party to this Agreement may (i) waive any
inaccuracies in the representations and warranties of any other party hereto or extend the time for
the performance of any of the obligations or acts of any other party hereto or (ii) waive
compliance by the other party with any of the agreements contained herein. Notwithstanding the
foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other
4
right hereunder. Any agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of such party.
(g) Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.
(i) This Agreement shall be governed by, and construed in accordance with, the laws of the
state of Delaware, applicable to contracts executed in and to be performed entirely within that
State.
(ii) All actions and proceedings arising out of or relating to this Agreement shall be heard
and determined in the Chancery Court of the State of Delaware or any federal court sitting in the
State of Delaware, and the parties hereto hereby irrevocably submit to the jurisdiction of such
court in any such action or proceeding and irrevocably waive the defense of an inconvenient forum
to the maintenance of any such action or proceeding. Each party hereby consents to process being
served in any such action or proceeding by the mailing of a copy thereof to the address set forth
in Section 6(j) hereof and agrees that such service upon receipt shall constitute good and
sufficient service of process or notice thereof. Nothing in this Section 6(g) shall affect or
eliminate any right to serve process in any other matter permitted by law.
(iii) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(h) Specific 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 in the Chancery Court of the state of
Delaware or any federal court sitting in the state of Delaware, without bond or other security
being required, this being in addition to any other remedy to which they are entitled at Law or in
equity.
(i) Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof. This Agreement is
not intended to and shall not confer upon any Person other than the parties hereto any rights
hereunder.
(j) Notices. All notices and other communications under this Agreement shall be in
writing and shall be deemed given (a) when delivered personally by hand (with written confirmation
of receipt), (b) when sent by facsimile (with written confirmation of transmission), or (c) one (1)
Business Day following the day sent by overnight courier (with written confirmation of receipt), in
each case at the following addresses and facsimile numbers (or to such other address or facsimile
number as a party may have specified by notice given to the other parties pursuant to this
provision):
5
If to Parent or Purchaser, to:
Altra Holdings, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxx Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
If to Stockholder, to:
Xxxxxx X. Xxxxx
c/o XX Xxxx’x Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
c/o XX Xxxx’x Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Dechert LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
(k) Severability. If any term or other provision of this Agreement is determined by a
court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule
of Law or public policy, all other terms, provisions and conditions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
(l) Assignment; Binding Effect. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other parties. Subject to
the preceding sentence, this Agreement shall be binding upon and shall
6
inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Any purported assignment not permitted under this Section 6(l) shall be null and void.
(m) Descriptive Headings. Headings of Sections and subsections of this Agreement are
for convenience of the parties only, and shall be given no substantive or interpretive effect
whatsoever.
(n) Drafting. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as jointly drafted by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
(o) Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed to be an original but all of which taken together shall constitute one and
the same agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first above written.
| ALTRA HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| FOREST ACQUISITION CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | President and Chief Executive Officer | |||
| XXXXXX X. XXXXX |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
8
