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Exhibit 99.6
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "AGREEMENT") is entered into as of
July 23, 2001, by and among SUN CATALINA HOLDINGS, LLC, a Delaware limited
liability company (together with any of its Permitted Affiliates that Own
Subject Securities from time to time, "SCH"), SUNTRUST BANKS, INC., a Georgia
corporation (together with any of its assignees that Own Subject Securities from
time to time, "STB") and CATALINA LIGHTING, INC., a Florida corporation (the
"COMPANY").
RECITALS
WHEREAS, on the date hereof, SCH is entering into an Amended and
Restated Stock Purchase Agreement (the "STOCK PURCHASE AGREEMENT") with the
Company, pursuant to which the Company is issuing shares of its common stock,
par value $0.01 (the "COMPANY COMMON STOCK"), to SCH;
WHEREAS, on the date hereof, SCH is entering into an Amended and
Restated Note Purchase Agreement (the "SCH NOTE PURCHASE AGREEMENT" and,
together with the Stock Purchase Agreement, the "PURCHASE AGREEMENTS") with the
Company, pursuant to which the Company is issuing subordinated notes and
warrants to purchase shares of Company Common Stock (the "SCH WARRANTS");
WHEREAS, on the date hereof, STB is entering into a Note Purchase
Agreement with the Company (the "STB NOTE PURCHASE AGREEMENT"), pursuant to
which the Company is issuing senior subordinated notes and warrants to purchase
shares of Company Common Stock (the "STB WARRANTS"); and
WHEREAS, the Shareholders desire to enter into this Agreement to
provide for certain rights with respect to transfers of Subject Securities.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
SECTION 1: CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) "EXPIRATION DATE" shall mean the date upon which this
Agreement is terminated pursuant to SECTION 7.2.
(b) Each Shareholder shall be deemed to "OWN" or to have
acquired "OWNERSHIP" of a security if such Shareholder: (i) is the record owner
of such security or (ii) in the case of SCH only, is deemed to be the
"beneficial owner" (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of such security.
(c) "PERMITTED AFFILIATE" shall mean, with respect to any
Person, any other Person that, directly or indirectly, controls, is controlled
by, or is under common control with, such Person (including, with respect to a
private equity fund or venture capital fund, a side-by-side or co-investment
fund or other affiliated private equity fund or venture capital fund). For the
purposes of this definition,
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the term "controlled by" means the possession of the power to vote more than 50%
of the voting securities of such Person or to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
(d) "PERMITTED TRANSFER" shall mean (i) with respect to SCH,
any Transfer of Subject Securities to a Permitted Affiliate, provided that such
Permitted Affiliate agrees to be bound by the terms of this Agreement and
executes a joinder hereto, Transfers of up to 5% of the aggregate Subject
Securities of SCH to any other Person and any other Transfer of Subject
Securities that complies with Section 4.1 or Section 4.2 hereof, and (ii) with
respect to STB, any Transfer of Subject Securities to any Person, provided that
such Person agrees to be bound by the terms of this Agreement, executes a
joinder hereto, and executes a Proxy with respect to such Subject Securities.
(e) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity or (iii) governmental
authority.
(f) "SHAREHOLDER" shall mean each of SCH and STB.
(g) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and other capital stock of
the Company and all options, warrants and other rights to acquire shares of
Company Common Stock or other capital stock of the Company) Owned by each of the
Shareholders as of the date of this Agreement and (ii) all additional securities
of the Company (including all additional shares of Company Common Stock and
other capital stock of the Company and all additional options, warrants and
other rights to acquire shares of Company Common Stock or other capital stock of
the Company) of which each of the Shareholders acquires Ownership during the
period from the date of this Agreement through the Expiration Date; provided,
however, that the term Subject Securities shall not include any shares of
Company Common Stock that are registered under the Securities Act and no longer
Owned by SunTrust Banks, Inc. or any of its Permitted Affiliates.
(h) A Person shall be deemed to have effected a "TRANSFER" of
a security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security or (ii) enters into an agreement or commitment
providing for the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such security or any interest therein.
SECTION 2: TRANSFERS
2.1 RESTRICTIONS ON TRANSFER OF SUBJECT SECURITIES. During the period
from the date of this Agreement through the Expiration Date, no Shareholder
shall Transfer any of the Subject Securities Owned by it except in a Permitted
Transfer. Any Transfer in contravention of the provisions of this Agreement
shall be void.
2.2 TRANSFER OF VOTING RIGHTS. During the period from the date of this
Agreement through the Expiration Date, STB shall not (a) deposit any Subject
Securities into a voting trust or (b) grant a proxy or enter into any similar
agreement with respect to any of the Subject Securities except as provided
herein.
SECTION 3: PROXY; VOTING
3.1 AGREEMENT TO VOTE SHARES. Until the Expiration Date, STB shall: (i)
vote all shares of Common Stock constituting Subject Securities Owned by STB (if
any) at any meeting of the shareholders of the Company (whether annual or
special and whether or not an adjourned meeting); and (ii) take action
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by written consent, as directed by SCH. Any such vote shall be cast or such
consent shall be given in accordance with such procedures relating thereto as
shall ensure that the vote or consent is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote or consent.
3.2 IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, STB, in furtherance of the transactions contemplated hereby, and in
order to secure the performance by STB of its duties under this Agreement, shall
promptly execute, in accordance with the applicable provisions of the Florida
Business Corporation Act, and deliver to SCH an irrevocable proxy, substantially
in the form of ANNEX A hereto (the "PROXY") and irrevocably appoint SCH or its
designees, with full power of substitution, its attorney and proxy to vote, or,
if applicable, to give written consent with respect to, all of the Subject
Securities owned by the STB in respect of any of the matters set forth in, and
in accordance with the provisions of SECTION 3.1. STB acknowledges that the
Proxy shall be coupled with an interest, shall constitute, among other things,
an inducement for SCH to enter into the transactions contemplated by the
Purchase Agreements, including the Subordination Agreement dated as of July 23,
2001, by and between SCH and STB, shall be irrevocable and shall not be
terminated by operation of law or otherwise upon the occurrence of any event.
Notwithstanding any provision contained in the Proxy, the Proxy shall terminate
upon the Expiration Date.
3.3 VOTING IN FAVOR OF INCREASING THE AUTHORIZED NUMBER OF SHARES OF
THE COMPANY. Until the Company has duly authorized and reserved for issuance
upon the exercise in full of the STB Warrants the maximum of shares of its
Common Stock into which the STB Warrants may be exercised, SCH agrees that it
will vote all of its Subject Securities in favor of any shareholder resolution
or consent increasing the authorized number of shares of Common Stock of the
Company.
SECTION 4: CO-SALE RIGHTS; MANDATORY SALES
4.1 CO-SALE RIGHTS.
(a) Except with respect to Transfers to Permitted Affiliates,
SCH agrees that it will not enter into any transaction that would result in the
sale by it of more than 5% of the Subject Securities then Owned by it, unless
prior to such sale SCH shall give at least fifteen (15) days written notice to
STB. SCH further agrees to offer to cause to be included in the sale, on the
same terms and conditions, that percentage of the shares of Common Stock then
Owned by STB equal to the Sale Portion (as defined below).
(b) Such notice (the "CO-SALE NOTICE") shall set forth (i) the
amount of securities to be sold, (ii) the principal terms of the sale, (iii) the
percentage such securities would constitute of the Common Stock of the Company
then Owned by SCH (the "SALE Portion"), (iv) the offer to cause to be included
in the sale, on the same terms and conditions, that percentage of the shares of
Common Stock then Owned by STB equal to the Sale Portion, and (v) the date by
which STB must respond, which shall be no less than ten (10) days after delivery
of the Co-Sale Notice (the "CUTOFF DATE"). To exercise its right of co-sale STB
must notify SCH on or prior to the Cutoff Date that it intends to participate in
the sale and the number of shares it desires to sell (up to its Sale Portion).
(c) In the event that the Subject Securities covered by the
Co-Sale Notice are not disposed of within ninety (90) days from the date of the
Co-Sale Notice, then such Subject Securities shall once again be subject to the
co-sale rights set forth in this SECTION 4.1.
(d) It shall be a condition to STB's right to participate in
the sale that STB shall (i) deliver to SCH for transfer one or more
certificates, properly endorsed for transfer, which represent the
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number of shares of Company Common Stock STB elects to sell pursuant to this
SECTION 4.1, (ii) pay its pro rata share (based on the respective Sale Portions)
of the expenses incurred in connection with such sale; and (iii) be obligated to
provide customary representations, warranties and indemnification solely
regarding the ownership of the Subject Securities, the absence of any liens or
encumbrances thereon and STB's ability to convey marketable title to the Subject
Securities, but excluding any representations, warranties and indemnification
regarding the business, assets, liabilities, prospects, operations or financial
condition of the Company or its business or the ownership of, liens or
encumbrances on, or marketable title of any other Subject Securities; provided,
however, that STB shall not be obligated in connection with such sale to agree
to indemnify or hold harmless the third party purchase with respect to any
amount in excess of the proceeds paid to it in connection with such sale.
4.2 MANDATORY SALES.
(a) In the event that the Company or SCH receives a bona fide
offer to purchase all of the outstanding shares of the Company's capital stock,
or for any other sale of the Company, whether structured as a sale of capital
stock or assets, or as a merger or other business combination (a "SALE
TRANSACTION") and prior to such sale SCH shall give written notice to STB that
it intends to sell its shares of Company capital stock or vote in favor of such
Sale Transaction (the "SALE NOTICE"), then SCH shall have the right, exercisable
at any time beginning fifteen (15) days after delivery of the Sale Notice to
require STB to sell all of the Subject Securities Owned by STB (including all
securities convertible into or exercisable for shares of the Company's capital
stock) to the proposed purchaser or participate in such Sale Transaction, on the
same terms and conditions as govern the proposed Sale Transaction.
(b) STB shall vote for and consent to such Sale Transaction,
and shall not object to, contest, or bring a claim against such Sale
Transaction. If the Sale Transaction is structured as (i) a merger or
consolidation, STB shall waive any dissenters rights, appraisal rights or
similar rights in connection with such merger or consolidation, or (ii) a sale
of stock, recapitalization or change in corporate form STB shall (A) agree to
sell all of the Subject Securities Owned by STB (including all securities
convertible into or exercisable for shares of the Company's capital stock) on
the terms and conditions approved by the Company and (B) execute such purchase
agreement and other documents (in form and substance reasonably satisfactory to
STB, consistent with the terms and conditions approved by the Company) as
executed are being executed by SCH. Each Stockholder shall take such other
necessary or desirable actions in connection with the consummation of
transactions contemplated hereby as reasonably requested by the Company.
(c) At least five (5) days prior to the date proposed for
consummation of the Sale Transaction, STB will deliver to SCH certificates
representing the Subject Securities Owned by it (and duly executed conversion or
exercise forms with respect to any securities convertible into or exercisable
for shares of the Company's capital stock), duly endorsed for transfer, together
with all other documents reasonably required by SCH to be executed in connection
with the Sale Transaction (in form and substance reasonably satisfactory to
SRB), or an unconditional agreement to deliver such shares and documents
pursuant to this SECTION 4.2 at the closing of such Sale Transaction in return
for delivery to STB of the consideration for the Sale Transaction. If STB fails
to deliver such certificates as provided above, upon the consummation of the
Sale Transaction, such certificates shall represent only the right to receive
the consideration for the shares of capital stock evidenced by such certificates
as is payable pursuant to the Sale Transaction. The Company will cause its books
and records to show that such shares are bound by the provisions of this SECTION
4.2 and that such shares are to be transferred on the records of the Company to
the purchaser.
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SECTION 5: REPRESENTATIONS AND WARRANTIES
Each Shareholder, as to itself only, hereby represents and warrants to
the other as follows:
5.1 AUTHORIZATION, ETC. Such Shareholder has the requisite power,
authority and legal right to execute, deliver and perform this Agreement and, in
the case of STB, the Proxy. The execution, delivery and performance of this
Agreement by such Shareholder and, in the case of STB, the Proxy have been duly
authorized by all necessary action, corporate or otherwise. This Agreement has
been duly executed and delivered by a duly authorized officer of such
Shareholder, and when executed and delivered by the other Shareholder, this
Agreement constitutes the legal, valid and binding obligations of such
Shareholder enforceable against such Shareholder in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws of general application affecting the enforcement of creditors' right
generally.
5.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement by such
Shareholder and, in the case of STB, the Proxy do not, and the performance of
this Agreement by such Shareholder and, in the case of STB, the Proxy will not:
(i) conflict with or violate any law, rule, regulation, order, decree or
judgment applicable to such Shareholder or by which any properties of such
Shareholder is or may be bound or affected; (ii) result in or constitute (with
or without notice or lapse of time) any breach of or default under, or give to
any other Person (with or without notice or lapse of time) any right of
termination, amendment, acceleration or cancellation of, or result (with or
without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
such Shareholder is a party or by which such Shareholder or any of his
affiliates or properties is or may be bound or affected; or (iii) conflict with
or violate any other contract, agreement or understanding relating to such
Shareholder's ability to vote the Subject Securities at any meeting of the
Shareholders of the Company or such Shareholder's ability to render written
consents in lieu thereof.
(b) The execution and delivery of this Agreement by such
Shareholder and, in the case of STB, the Proxy do not, and the performance of
this Agreement by Shareholder and, in the case of STB, the Proxy will not,
require any consent or approval of any Person, except to the extent that it
would not impact the ability of such Shareholder to perform its obligations
hereunder.
5.3 TITLE TO SECURITIES. As of the date of this Agreement, STB holds of
record (free and clear of any encumbrances or restrictions except restrictions
under federal and state securities laws and restrictions under this Agreement)
the STB Warrant issued under the STB Note Purchase Agreement. STB does not Own
any shares of capital stock or other securities of the Company, or any option,
warrant or other right to acquire (by purchase, conversion or otherwise) any
shares of capital stock or other securities of the Company, other than the STB
Warrant issued under the STB Note Purchase Agreement.
SECTION 6: FURTHER ASSURANCES
From time to time and without additional consideration, each
Shareholder shall execute and deliver, or cause to be executed and delivered,
such additional transfers, assignments, endorsements, proxies, consents and
other instruments, and shall take such further actions, as the other may
reasonably request for the purpose of carrying out and furthering the intent of
this Agreement and the Proxy.
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SECTION 7: MISCELLANEOUS
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by the Shareholders in this Agreement shall survive until the
Expiration Date.
7.2 TERMINATION. This Agreement shall continue until terminated upon
the earliest to occur of (the "EXPIRATION DATE"): (i) the date that all Subject
Securities of STB or its assignees have been registered under the Securities
Act; (ii) July ___, 2011; or (iii) the mutual written consent of each of the
Shareholders.
7.3 NOTICES. Any notice or other communication required or permitted to
be delivered to any party under this Agreement shall be in writing and shall be
deemed to have been duly delivered, given and received: if delivered personally,
upon receipt; if telecopied, when telecopied with confirmation of receipt,
provided that a written copy thereof is sent on the same day by postage paid
first-class mail; if sent by overnight delivery service, the next business day
following timely deposit with such overnight delivery service; and if sent by
certified or registered mail, three business days after timely deposit (postage
prepaid) with the U.S. mail service, to such party at the following address:
if to SCH:
Sun Catalina Holdings, LLC
c/o Sun Capital Partners, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Xxxxxx X. Xxxxxx
and C. Xxxxx Xxxxx, Esq.
Telefax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
One Oxford Centre, Thirty-Second Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telefax: (000) 000-0000
if to STB:
SunTrust Banks, Inc.
000 Xxxxxxxxx Xxxxxx XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telefax: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telefax: (000) 000-0000
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To Company:
Catalina Lighting, Inc.
00000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telefax: (000) 000-0000
7.4 SEVERABILITY. If any provision of this Agreement of the Proxy or
any part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable the
fullest extent permitted by law, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Agreement or the
Proxy. Each provision of this Agreement is separable from every other provision
of this Agreement, and each part of each provision of this Agreement is
separable from every other part of such provision.
7.5 ENTIRE AGREEMENT. This Agreement, the Proxy and any other documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings among the parties with respect
thereto. No addition to or modification of any provision of this Agreement or
the Proxy shall be binding upon any party unless made in writing and signed by
all of the parties.
7.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by any of the Shareholders and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Agreement shall be binding upon each of the
Shareholders and their respective heirs, estate, executors, personal
representatives, successors and assigns. Nothing in this Agreement is intended
to confer on any Person (other than the Shareholders and their respective
successors and assigns) any rights or remedies of any nature.
7.7 SPECIFIC PERFORMANCE. The parties acknowledge that irreparable
damage would occur in the event that any of the provisions of this Agreement or
the Proxy were not performed in accordance with its specific terms or was
otherwise breached. Each Shareholder agrees that, in the event of any breach or
threatened breach by any Shareholder of any covenant or obligation contained in
this Agreement or the Proxy, the other Shareholder shall be entitled (in
addition to any other remedy that may be available to it, including monetary
damages) to seek and obtain (a) a decree or order of specific performance to
enforce the observance and performance of such covenant or obligation, and (b)
an injunction restraining such breach or threatened breach. Each Shareholder
further agrees that no Person shall be required to obtain, furnish or post any
bond or similar instrument in connection with or as a condition to obtaining any
remedy referred to in this SECTION 7.7, and each Shareholder irrevocably waives
any right he may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
7.8 LEGEND. Any certificates representing shares of Subject Securities
issued to STB shall bear the following legend, which shall remain on such
certificates until the Expiration Date:
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"THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A SHAREHOLDERS AGREEMENT, DATED AS OF JULY __, 2001, BETWEEN
THE SHAREHOLDER AND SUN CATALINA HOLDINGS, LLC WHICH, AMONG OTHER
THINGS, RESTRICTS THE SALE OR TRANSFER OF SUCH SHARES EXCEPT IN
ACCORDANCE THEREWITH AND SUCH SHARES ARE ALSO SUBJECT TO AN IRREVOCABLE
PROXY PROVIDED UNDER THE FLORIDA BUSINESS CORPORATION ACT."
Any certificates representing shares of Subject Securities issued to
SCH shall bear the following legend, which shall remain on such certificates
until the Expiration Date:
"THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A SHAREHOLDERS AGREEMENT, DATED AS OF JULY __, 2001, BETWEEN
THE SHAREHOLDER AND SUNTRUST BANKS, INC. WHICH, AMONG OTHER THINGS,
RESTRICTS THE SALE OR TRANSFER OF SUCH SHARES EXCEPT IN ACCORDANCE
THEREWITH."
7.9 NON-EXCLUSIVITY. The rights and remedies of each Shareholder under
this Agreement are not exclusive of or limited by any other rights or remedies
that it may have, whether at law, in equity, by contract or otherwise, all of
which rights and remedies shall be cumulative (and not alternative). Without
limiting the generality of the foregoing, the rights and remedies of each
Shareholder under this Agreement, and the obligations and liabilities of the
other Shareholder under this Agreement, are in addition to their respective
rights, remedies, obligations and liabilities under common law requirements and
under all applicable statutes, rules and regulations. Nothing in this Agreement
shall limit any of the Shareholders' obligations, rights or remedies, under any
other agreement between them; and nothing in any such other agreement shall
limit any of such Shareholder's obligations, rights or remedies under this
Agreement.
7.10 FLORIDA LAW TO GOVERN; JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement and the Proxy shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of Florida, without giving
effect to any of the conflicts of laws provisions thereof that would require the
application of the substantive laws of any other jurisdiction. In connection
with any dispute related to this Agreement or the Proxy, each of the parties
hereto hereby irrevocably and unconditionally (a) submits to the exclusive
jurisdiction of the United States District Court for the Southern District of
Florida, or, if such court will not accept jurisdiction, the jurisdiction of any
court of competent civil jurisdiction sitting in Miami-Dade County, Florida, and
(b) waives the right and agrees not to assert by way of motion, as a defense or
otherwise in any action, suit or other legal proceeding brought in any such
court, any claim that it, he or she is not subject to the jurisdiction of such
court, that such action, suit or proceeding is brought in an inconvenient forum
or that the venue of such action, suit or proceeding is improper. Each of the
parties hereto also irrevocably and unconditionally consents to the service of
any process, pleadings, notices or other papers in a manner permitted by the
notice provisions of SECTION 7.3 hereof. EACH PARTY 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 SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT HEREOF.
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7.11 COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
7.12 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
7.13 WAIVER. No failure on the part of either Shareholder to exercise
any power, right, privilege or remedy under this Agreement or the Proxy, and no
delay on the part of either Shareholder in exercising any power, right,
privilege or remedy under this Agreement or the Proxy, shall operate as a waiver
of such power, right, privilege or remedy; and no single or partial exercise of
any such power, right, privilege or remedy shall preclude any other or further
exercise thereof or of any other power, right, privilege or remedy. Neither
Shareholder shall be deemed to have waived any claim available to such
Shareholder arising out of this Agreement or the Proxy, or any power, right,
privilege or remedy of such Shareholder under this Agreement or the Proxy,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of such
Shareholder; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
7.14 COMPANY ACTION. The Company shall take all action, do all things
and execute and deliver all documents as may be necessary to ensure that the
intent and purpose of this Agreement and the Proxy are carried out.
7.15 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(c) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
SUN CATALINA HOLDINGS, LLC,
By: /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
SUNTRUST BANKS, INC.
By: /s/ Illegible
---------------------------------
Name:
Title:
CATALINA LIGHTING, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: President and Chief
Executive Officer
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ANNEX A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Shareholders' Agreement, dated as of July 23, 2001 (the
"Shareholders' Agreement"), between the undersigned, Catalina Lighting, Inc., a
Florida corporation ("Catalina"), and Sun Catalina Holdings, LLC, a Delaware
limited liability company ("SCH"), a copy of such agreement being attached
hereto and incorporated by reference herein, the undersigned hereby irrevocably
appoints _________ and ________, and each of them, the attorneys, agents and
proxies, with full power of substitution in each of them, for the undersigned
and in the name, place and stead of the undersigned, in respect of any of the
matters set forth in Section 3 of the Shareholders' Agreement, to vote or, if
applicable, to give written consent, in accordance with the provisions of said
Section 3 and otherwise act (consistent with the terms of the Shareholders'
Agreement) with respect to all of the Subject Securities (as defined in the
Shareholders' Agreement) of Catalina, whether now owned or hereafter acquired,
which the undersigned is or may be entitled to vote at any meeting of Catalina
held after the date hereof, whether annual or special and whether or not an
adjourned meeting, or, if applicable, to give written consent with respect
thereto. This Proxy is given in consideration of the transactions contemplated
by the Purchase Agreements (as defined in the Shareholders' Agreement) and that
certain Subordination Agreement dated as of July __, 2001 by and between STB and
SCH, and as such is coupled with an interest, shall be irrevocable and binding
on any successor in interest of the undersigned and shall not be terminated by
operation of law upon the occurrence of any event, including, without
limitation, the death or incapacity of the undersigned. This Proxy shall operate
to revoke any prior proxy as to the Subject Securities heretofore granted by the
undersigned. This Proxy shall terminate on the Expiration Date (as defined in
the Shareholders Agreement). This Proxy has been executed in accordance with the
Florida Business Corporation Act.
Dated: July 23, 2001
SUNTRUST BANKS, INC.
By:__________________________________
Name:
Title:
[Signature Page to Proxy]
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