EXHIBIT (C)(3)
STOCKHOLDER AGREEMENT
This Stockholder Agreement dated May 5, 1999 (this "Agreement"), is made
and entered into among Falcon Products, Inc., a Delaware corporation
("Parent"), SY Acquisition, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent ("Purchaser"), on the one hand, and Xxxx X. Xxxxxxxxx
("Stockholder"), on the other hand.
Recitals:
A. Parent, Purchaser, and Xxxxxx Xxxxxxxx Industries, Inc., a Delaware
corporation ("Company"), propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to
which the Purchaser will merge with and into Company (the "Merger") on the
terms and subject to the conditions set forth in the Merger Agreement. Except
as otherwise defined herein, terms used herein with initial capital letters
have the respective meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, Stockholder beneficially owns and is entitled to
dispose of (or to direct the disposition of) and to vote (or to direct the
voting of) 625,000 shares (together with any shares issued to Stockholder
after the date of this Agreement pursuant to the exercise of options, the
"Shares") of the common stock, par value $.05 per share (the "Common Stock"),
of Company. The Shares as of the date of this Agreement are described on
Exhibit A hereto.
C. Pursuant to the Merger Agreement, Purchaser shall commence a cash tender
offer (the "Offer") to purchase at a price of $16.50 per share all of the
Common Stock of Company. Stockholder has advised Parent and Purchaser that it
intends to tender the Shares in the Offer.
D. As a condition and inducement to Parent's and Purchaser's willingness to
enter into the Merger Agreement, Parent and Purchaser have requested that
Stockholder agree, and Stockholder has agreed, to enter into this Agreement.
E. The Board of Directors of the Company has approved this Agreement, the
Merger Agreement and the transactions contemplated hereby and thereby so as to
render inapplicable Section 203 of the Delaware General Corporation Law to the
transactions contemplated hereby and thereby.
Now, Therefore, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained in this Agreement and the
Merger Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
ARTICLE I
VOTING AGREEMENT
Section 1.1 Agreement to Vote Shares. During the term of this Agreement, at
any meeting of the stockholders of Company called to consider and vote upon
the adoption of the Merger Agreement (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in
respect of the adoption of the Merger Agreement by written consent of
stockholders of Company, Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the Shares in favor of
the adoption of the Merger Agreement and in favor of any other matter
necessary for the consummation of the transactions contemplated by the Merger
Agreement and considered and voted upon at any such meeting or made the
subject of any such written consent, as applicable. During the term of this
Agreement, at any meeting of the stockholders of Company called to consider
and vote upon any Other Proposal (as hereinafter defined), and at any and all
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postponements and adjournments thereof, and in connection with any action to
be taken in respect of any Other Proposal by written consent of stockholders
of Company, Stockholder shall vote or cause to be voted (including by written
consent, if applicable) all of the Shares against such Other Proposal. For
purposes of this Agreement, the term "Other Proposal" means any (a) Takeover
Proposal (as defined in the Merger Agreement) or (b) other action which is
intended or could reasonably be expected to materially impede, interfere with,
delay or materially and adversely affect the consummation of the Merger or any
of the other transactions contemplated by the Merger Agreement or this
Agreement; provided, however, that neither the Merger nor any other
transaction contemplated by the Merger Agreement to be consummated by Company,
Parent or Purchaser in connection with the Merger shall constitute an Other
Proposal. Stockholder shall not enter into any agreement or understanding with
any person or entity the effect of which would be violative of the provisions
and agreements contained in this Section 1.1.
Section 1.2 Irrevocable Proxy.
(a) Grant of Proxy. STOCKHOLDER HEREBY APPOINTS PARENT AND ANY DESIGNEE OF
PARENT, AND EACH OF THEM INDIVIDUALLY, STOCKHOLDER'S AGENT, PROXY AND
ATTORNEY-IN-FACT DURING THE TERM HEREOF, PURSUANT TO THE PROVISIONS OF SECTION
212 OF THE DELAWARE GENERAL CORPORATION LAW, WITH FULL POWER OF SUBSTITUTION
AND RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT DURING THE OPTION PERIOD
WITH RESPECT TO THE SHARES IN ACCORDANCE WITH SECTION 1.1 HEREOF. THIS PROXY
IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF STOCKHOLDER UNDER THIS
AGREEMENT. STOCKHOLDER AFFIRMS THAT THIS PROXY IS COUPLED WITH AN INTEREST AND
SHALL BE IRREVOCABLE. STOCKHOLDER SHALL TAKE SUCH FURTHER ACTION OR EXECUTE
SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
PROXY.
(b) Other Proxies Revoked. Stockholder represents that any proxies
heretofore given in respect of the Shares, if any, are not irrevocable, and
that all such proxies are hereby revoked.
ARTICLE II
CUSTODY AND TENDER OF SHARES
2.1 Delivery of Shares to Custodian. As soon as practicable after the date
hereof, Stockholder shall deliver the certificates representing the Shares
(together with related stock powers duly endorsed for transferability) to
X'Xxxxxx & Xxxxxx, LLC (the "Custodian"), which shall retain custody of the
Shares and stock powers until they are tendered pursuant to Section 2.3.
2.2 Delivery of Letter of Transmittal to Custodian. As soon as practicable
after the date on which the Offer is commenced, Stockholder shall deliver a
Letter of Transmittal covering the Shares, duly executed in accordance with
the terms of the offer materials used in connection with the Offer, to the
Custodian, which shall retain custody of the Letter of Transmittal until it is
delivered to the Depository pursuant to Section 2.3.
2.3 Tender of Shares and Delivery of Letter of Transmittal to Depository.
Prior to the expiration or termination of the Offer, Stockholder shall cause
Custodian to and Custodian shall deliver all, but not part, of the Shares,
together with the related stock powers and Letter of Transmittal, to the
depository for the Offer and such delivery shall constitute a tender by the
Stockholder under the Offer. The tendered Shares may not be withdrawn except
following the termination of this Agreement pursuant to Section 5.2. Except as
otherwise set forth in this Agreement, all rights of ownership with respect to
the Shares shall remain with Stockholder until the Effective Time or the
purchase of the Shares pursuant to the Offer.
2.4 Right of Purchaser. If the Shares, stock powers, and Letter of
Transmittal have not been tendered to the depository by the fifteenth (15th)
business day following the commencement of the Offer, Purchaser shall have the
right to instruct the Custodian to effect the tender of the Shares as provided
in Section 2.3, whereupon
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Custodian shall promptly, but in any event within one (1) business day,
deliver such Shares, stock powers, and Letter of Transmittal to said
Depository. Such instruction shall be given to Custodian in the same manner as
provided in Section 5.6 with respect to X'Xxxxxx & Xxxxxx, LLC.
2.5 Further Assurances. Stockholder shall take all actions necessary or
appropriate to cause the Custodian to tender the Shares to the depository for
the Offer prior to the expiration or termination of the Offer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Certain Representations and Warranties of Stockholder.
Stockholder represents and warrants to Parent and Purchaser as follows:
(a) Ownership. Stockholder is the sole record and beneficial owner of
the Shares and has full and unrestricted power to dispose of and to vote
the Shares. Other than as set forth in the Company's Proxy Statement dated
March 24, 1999, Stockholder does not beneficially own any securities of
Company on the date hereof other than the Shares. Stockholder has sole
voting power and sole power to issue instructions with respect to the
matters set forth in Articles I and II hereof, sole power of disposition,
sole power of conversion, sole power to demand appraisal rights and sole
power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Shares with no limitations, qualifications
or restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(b) Power and Authority; Execution and Delivery. Stockholder has all
requisite legal capacity, power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of Stockholder. This
Agreement has been duly executed and delivered by Stockholder and, assuming
that this Agreement constitutes the valid and binding obligation of the
other parties hereto, constitutes a valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and to general principles of equity.
(c) No Conflicts. The execution and delivery of this Agreement do not,
and, subject to compliance with the HSR Act and securities laws, to the
extent applicable, the consummation of the transactions contemplated hereby
and compliance with the provisions hereof, will not (i) conflict with or
result in any breach of any organizational documents applicable to
Stockholder or (ii) conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give
rise to a material obligation, a right of termination, cancellation, or
acceleration of any obligation or a loss of a material benefit under, or
require notice to or the consent of any person under any agreement,
instrument, undertaking, law, rule, regulation, judgment, order,
injunction, decree, determination or award binding on Stockholder, other
than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i)
materially impair the ability of Stockholder to perform Stockholder's
obligations under this Agreement or (ii) prevent or delay the consummation
of any of the transactions contemplated hereby.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Articles I and II hereof, the Shares and the
certificates representing the Shares are now, and at all times during the
term hereof will be, held by Stockholder, or by a nominee or custodian for
the benefit of 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 or any such encumbrances not
caused or created by Stockholder.
(e) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
Stockholder.
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Section 3.2 Representations and Warranties of Parent and Purchaser. Parent
and Purchaser hereby represent and warrant to Stockholder that:
(a) Power and Authority; Execution and Delivery. Parent and Purchaser
each has all requisite legal capacity, corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and
Purchaser and the consummation by Parent and Purchaser of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of Parent and Purchaser. This Agreement has been duly
executed and delivered by Parent and Purchaser and, assuming that this
Agreement constitutes the valid and binding obligation of Stockholder,
constitutes a valid and binding obligation of Parent and Purchaser,
enforceable against Parent and Purchaser in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and to general principles of equity.
(b) No Conflicts. The execution and delivery of this Agreement do not,
and, subject to compliance with the HSR Act, to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with
the provisions hereof will not (i) conflict with or result in any breach of
any organizational documents applicable to Parent or Purchaser or (ii)
conflict with, result in a breach or violation of or default (with or
without notice or lapse of time or both) under, or give rise to a material
obligation, right of termination, cancellation, or acceleration of any
obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
law, rule, regulation, judgment, order, injunction, decree, determination
or award binding on Parent or Purchaser, other than any such conflicts,
breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of Parent
and Purchaser to perform their obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE IV
CERTAIN COVENANTS
Section 4.1 Certain Covenants of Stockholder.
(a) Restriction on Transfer of Shares, Proxies and Noninterference. During
the term of this Agreement, Stockholder shall not, directly or indirectly: (A)
except pursuant to the terms of this Agreement and except for the tender of
Shares in the Offer, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition
of, any or all of the Shares; (B) except pursuant to the terms of this
Agreement, grant any proxies (other than proxies relating to the election of
management's slate of directors at an annual meeting of Company's
stockholders, and other routine matters which would not require the filing of
a preliminary proxy statement under Rule 14a-6(a) of the Exchange Act), or
powers of attorney, deposit any of the Shares into a voting trust or enter
into a voting agreement with respect to any of the Shares; or (C) take any
action that would make any representation or warranty contained herein untrue
or incorrect or have the effect of impairing the ability of Stockholder to
perform Stockholder's obligations under this Agreement or preventing or
delaying the consummation of any of the transactions contemplated hereby or by
the Merger Agreement; provided, however, that notwithstanding the foregoing,
Stockholder may transfer Shares to any charitable foundation established by
him if, and only if, such charitable foundation (i) acknowledges in writing
its understanding and agreement that the Shares so transferred to it shall
remain subject to this Agreement, and (ii) further agrees to be bound by the
terms hereof with respect to such Shares.
(b) Cooperation. Stockholder, in the capacity as a stockholder, shall
cooperate fully with Parent, Purchaser and Company in connection with their
respective efforts to fulfill the conditions to the Merger set forth in
Article VII of the Merger Agreement.
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(c) Releases. Stockholder hereby fully, unconditionally and irrevocably
releases, effective as of the Effective Time, any and all claims and causes of
action that Stockholder has or may have against Company or any of its
Subsidiaries or any present or former director, officer, employee or agent of
Company or any of its Subsidiaries (collectively, the "Released Parties")
arising or resulting from or relating to any alleged breach of fiduciary duty
by any officer or director of the Company occurring prior to the Effective
Time; provided, however, that such release shall not apply to any currently
effective contract or agreement between Stockholder and Company (the "Existing
Contracts") or any claim or cause of action arising therefrom.
(d) No Solicitation. Stockholder shall not, in the capacity as a
stockholder, respond to any inquiries or the making of any proposal by any
person or entity (other than Parent or any affiliate of Parent) concerning any
business combination merger, tender offer, exchange offer, sale of assets,
sale of shares of capital stock or debt securities or similar transactions
involving Company or any Subsidiary, division or operating or principal
business unit of Company. If Stockholder, in the capacity as a Stockholder,
receives any such inquiry or proposal, then Stockholder shall promptly inform
Parent of the existence thereof. Stockholder, in the capacity as a
Stockholder, will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing. For purposes of this paragraph (d),
Stockholder shall not be deemed to be acting in the capacity as a stockholder
if, and to the extent that, the Board of Directors of the Company or any
committee thereof authorizes and directs Stockholder to hold discussions with
any third party in response to the Company's receipt of an unsolicited
Takeover Proposal on behalf of the Company provided that Stockholder informs
such third party that in holding any such discussions with such third party,
Stockholder is speaking on behalf of the Corporation and not for himself as a
stockholder of the Company.
(e) Reliance by Parent. 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.
ARTICLE V
MISCELLANEOUS
Section 5.1 Fees and Expenses. Each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and
the consummation of the transactions contemplated hereby.
Section 5.2 Amendment; Termination. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto. This Agreement and the proxies granted pursuant to Section 1.2 shall
terminate on the earlier of (i) the Effective Time, (ii) the termination of
the Merger Agreement in accordance with its terms. If, following the
termination of this Agreement as contemplated by clause (ii) of the previous
sentence, Stockholder notifies Parent and Purchaser that the Shares have been
tendered, that it desires to withdraw the Shares from the Offer, and that it
has so notified the depository, Parent and Purchaser shall, so long as Shares
may then be withdrawn from the Offer, cooperate with Stockholder in its
request for the return of the Shares and instruct the depository to return the
Shares to Stockholder at its earliest convenience.
Section 5.3 Extension; Waiver. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
Section 5.4 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 with respect to the
subject matter of this Agreement, and is not intended to confer upon any
person other than the parties any rights or remedies; provided, however, that
the provisions of Section 4.1(c) are intended to inure to the benefit of, and
to be enforceable by, the Released Parties. This Agreement shall not affect or
in any way amend any of the Existing Contracts.
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Section 5.5 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 conflict
of laws thereof.
Section 5.6 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 or telecopy
(providing proof of delivery) to the address set forth below (or, in each
case, at such other address as shall be specified by like notice).
If to Parent or Purchaser:
Falcon Products
0000 Xxxxxxx Xxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Gallop, Xxxxxxx & Xxxxxx, X.X.
000 Xxxxx Xxxxxx / Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to Stockholder:
Xxxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
X'Xxxxxx & Xxxxxx, LLC
000 Xxxx Xxxxxx Xxxxx / Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxx, Esq.
Telecopy: (000) 000-0000
Section 5.7 Assignment. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated,
in whole or in part, by Stockholder without the prior written consent of
Parent, and any such assignment or delegation that is not consented to shall
be null and void. This Agreement, together with any rights, interests, or
obligations of Parent and Purchaser hereunder, may be assigned or delegated,
in whole or in part, by Parent and Purchaser without the consent of or any
action by Stockholder upon notice by Parent or Purchaser to Stockholder as
herein provided. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns (including without limitation any
person to whom any Shares are sold, transferred, assigned or passed, whether
by operation of law or otherwise).
Section 5.8 Confidentiality. Stockholder recognizes that successful
consummation of the transactions contemplated by this Agreement may be
dependent upon confidentiality with respect to the matters referred to herein.
In this connection, pending public disclosure thereof, Stockholder hereby
agrees not to disclose or discuss such matters with anyone not a party to this
Agreement (other than its counsel and advisors, if any) without the
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prior written consent of Parent, except for filings required pursuant to the
Exchange Act and the rules and regulations thereunder or disclosures its
counsel advises are necessary in order to fulfill its obligations imposed by
law, in which event Stockholder shall give notice of such disclosure to Parent
as promptly as practicable so as to enable Parent to seek a protective order
from a court of competent jurisdiction with respect thereto.
Section 5.9 Further Assurances. Stockholder shall execute and deliver such
other documents and instruments and take such further actions as may be
necessary or appropriate or as may be reasonably requested by Parent or
Purchaser in order to ensure that Parent and Purchaser receive the full
benefit of this Agreement.
Section 5.10 Enforcement. 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. Accordingly, 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 Court of Chancery in and for New Castle County in the State
of Delaware (or, if such court lacks subject matter jurisdiction, any
appropriate state or federal court in New Castle County in the State of
Delaware), this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit
itself to the personal jurisdiction of the Court of Chancery in and for New
Castle County in the State of Delaware (or, if such court lacks subject matter
jurisdiction, any appropriate state or federal court in New Castle County in
the State of Delaware) in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) shall not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other
than the Court of Chancery in and for New Castle County in the State of
Delaware (or, if such court lacks subject matter jurisdiction, any appropriate
state or federal court in New Castle County in the State of Delaware).
Section 5.11 Severability. Whenever possible, each provision or portion of
any provision of this Agreement shall 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 shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall 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.
Section 5.12 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.
Section 5.13 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
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In Witness Whereof, each of the parties hereto has caused this Agreement to
be signed as of the day and year first written above.
Falcon Products, Inc.
/s/ Xxxxxxxx X. Xxxxxx
By: _________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
Sy Acquisition, Inc.
/s/ Xxxxxxxx X. Xxxxxx
By: _________________________________
Name: Xxxxxxxx X. Xxxxxx
Title:President
/s/ Xxxx X. Xxxxxxxxx
By: _________________________________
Name: Xxxx X. Xxxxxxxxx
This Stockholder Agreement dated May 5, 1999 among Falcon Products, Inc., a
Delaware corporation, SY Acquisition, Inc., a Delaware corporation, and Xxxx X.
Xxxxxxxxx is hereby executed effective as of May 5, 1999 on behalf of X'Xxxxxx
& Xxxxxx, LLC, as Custodian, solely to evidence that it is bound by the
obligations contained in Article II.
X'Xxxxxx & Xxxxxx, LLC
/s/ Xxxxxx Xxxx
By: _________________________________
Xxxxxx Xxxx, Member
Date: __________________________________
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Exhibit A
Certificate
Number Number of Shares*
----------- -----------------
--------
*Does not include options held by Xx. Xxxxxxxxx to acquire a total of 9,998
shares which shares, if issued, pursuant to the exercise thereof shall be
deemed Shares for purposes of this Stockholder Agreement.
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