Exhibit 10.6
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (the "Agreement") dated as of
November 12, 1999, between xXxxxxxx.xxx, Inc., a Maryland
corporation ("xXxxxxxx.xxx"), and Xxxxxx X. Xxxxxxx, Xx. (the
"Stockholder").
WHEREAS, the Stockholder individually possesses the right
to vote, or direct the voting of, an aggregate of 1,828,115 shares of common
stock, $0.001 par value ("Shares"), of Xxxxxxx Holdings, Inc., a Maryland
corporation ("CHI"), which constitute approximately 61.9% of the outstanding
capital stock of CHI, no other shares of any other class of capital stock of
CHI being issued or outstanding; and
WHEREAS, the Stockholder individually possesses the power
to dispose of, or to direct the disposition of, an aggregate of 1,828,115
Shares, which constitute approximately 61.9% of the outstanding capital stock
of CHI; and
WHEREAS, xXxxxxxx.xxx has entered into an
Agreement of Merger with CHI, dated as of the date hereof (the "Merger
Agreement"), pursuant to which xXxxxxxx.xxx would acquire CHI and
The Xxxxxxx Co., CHI's wholly-owned subsidiary, through the conversion of
each outstanding Share into shares of common stock of xXxxxxxx.xxx
and cash in lieu of fractional shares pursuant to a merger of CHI into a
subsidiary of xXxxxxxx.xxx (the "Merger"); and
WHEREAS, as a condition to entering into the Merger
Agreement, xXxxxxxx.xxx has requested that the Stockholder agree,
and the Stockholder has agreed, to support the Merger.
NOW, THEREFORE, to induce xXxxxxxx.xxx to enter
into the Merger Agreement and in consideration of the mutual covenants and
agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. The Stockholder
represents that:
(a) (1) he possesses the sole right to vote, or direct
the voting of, all of the Shares, (2) such number of Shares constitutes all
of the Shares with respect to which the Stockholder possesses the sole right
to vote, or direct the voting of, as the case may be, and (3) he has good and
merchantable title to all of the Shares, free of all restrictions and
encumbrances of every kind and character.
(b) (1) he possesses the sole power to dispose of, or
direct the disposition of, the Shares, (2) such number of Shares constitutes
all of the Shares with respect to which the Stockholder possesses or will
possess the sole power to dispose of or direct the
disposition of, and (3) he has good and merchantable title to all of the
Shares free of all restrictions and encumbrances of any kind or character.
(c) he does not own, of record or beneficially, any
other shares of CHI's capital stock. For the purposes of this Agreement,
beneficial ownership has the meaning set forth in Rule 13d-3 of the
Securities Exchange Act of 1934, as amended.
(d) he has full right, power and authority to enter
into, deliver and perform this Agreement; this Agreement has been duly
executed and delivered by such stockholder; and this Agreement constitutes
the legal, valid and binding obligation of the Stockholder, and is
enforceable in accordance with its terms.
2. COVENANTS OF STOCKHOLDER. The Stockholder covenants as
follows:
(a) RESTRICTIONS ON TRANSFER. During the term of this
Agreement, the Stockholder shall not pledge, hypothecate, grant a security
interest in, sell, transfer or otherwise dispose of or encumber any of the
Shares and will not enter into any agreement, arrangement or understanding or
grant a proxy (other than a proxy for the purpose of voting his Shares in
accordance with Subparagraph 2(b) hereof) which would, during the term of
this Agreement (i) restrict, (ii) establish a right of first refusal to, or
(iii) otherwise relate to the transfer or voting of such Shares.
(b) MERGER. The Stockholder shall vote the Shares in
favor of the Merger Agreement, and the Merger and the transactions
contemplated thereby. The Stockholder agrees not to vote his Shares in favor
of any merger, consolidation, share exchange or sale of assets or other
business combination involving CHI other than the Merger during the term of
this Agreement.
(c) ADDITIONAL SHARES. The provisions of subparagraphs
(a) and (b) above shall apply to all Shares currently owned and hereafter
acquired, of record or beneficially, by each of the Stockholder.
3. TERMINATION. This Agreement shall terminate upon the
termination of the Merger Agreement.
4. GOVERNING LAW. This Agreement shall in all respects be
governed by and construed under the laws of Maryland, all rights and remedies
being governed by such laws, without regard to conflict of law principles.
5. BENEFIT OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of, and shall be enforceable by, the parties
hereto and their respective personal representatives, successors and assigns,
except that neither party may transfer or assign any of its respective rights
or obligations hereunder without the prior written consent of the other party
or, if by xXxxxxxx.xxx, in accordance with the Merger Agreement.
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6. COUNTERPARTS. For convenience of the parties hereto,
this Agreement may be executed in several counterparts, each of which shall
be deemed an original, all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, xXxxxxxx.xxx and the
Stockholder has caused this Agreement to be duly executed as of the day and
year first above written.
xXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXXXX, XX.
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Xxxxxx X. Xxxxxxx, Xx., President,
Chief Executive Officer and
Chairman of the Board
STOCKHOLDER
/s/ XXXXXX X. XXXXXXX, XX.
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Xxxxxx X. Xxxxxxx, Xx.
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