EXECUTION COPY
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (this "Agreement"), dated as of July 10, 2000,
by and among Waxman USA Inc., a Delaware corporation ("Stockholder"), Wilmar
Industries, Inc., a New Jersey corporation ("Wilmar"), BW Acquisition,
Inc., a Delaware corporation and a wholly-owned subsidiary of Wilmar ("BW
Acquisition" and, together with Wilmar, "Purchaser"), American Stock Transfer &
Trust Company (the "Voting Trustee"), and Xxxxxxx Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Purchaser and Company are entering into
an Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
pursuant to which Purchaser will acquire all of the outstanding shares of common
stock, $0.01 par value per share, of Company (the "Common Stock"), for the
Merger Consideration, as defined in the Merger Agreement in effect on the date
hereof, pursuant to a merger of the Purchaser with and into Company (the
"Merger");
WHEREAS, the Stockholder owns, beneficially and of record, as of the
date hereof, 7,186,530 shares of Common Stock (the "Existing Shares" and,
together with any shares of Common Stock acquired after the date hereof and
prior to the termination hereof, hereinafter collectively referred to as the
"Shares"), of which 1,000,000 Existing Shares are pledged (the "Pledged Shares")
to Congress Financial Corporation ("Congress") as collateral security for the
Stockholder's obligations to Congress pursuant to that certain Loan and Security
Agreement, dated as of June 17, 1999 and amended as of December 8, 1999, March
29, 2000, May 1, 2000 and July 9, 2000, by and among Congress, Waxman Consumer
Products Group, Inc., WOC Inc., Western American Manufacturing Inc., WAMI Sales,
Inc., Stockholder, Waxman Industries, Inc., a Delaware corporation ("Waxman"),
and TWI, International, Inc. (the "Congress Credit Facility"); -
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, and in reliance upon Stockholder's representations, warranties,
covenants and agreements hereunder, Purchaser has required that Stockholder
agree, and Stockholder has agreed, to enter into a Stockholder Agreement (the
"Stockholder Agreement") dated today's date, and this Agreement; and
WHEREAS, this Agreement is being entered into concurrently with the
execution of the Merger Agreement and the Stockholder Agreement, and capitalized
terms used and not defined herein have the respective meanings ascribed to them
in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained and for such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
2
1. Deposit into Voting Trust Arrangement; and Acknowledgment of Receipt.
Within one (1) business day of the date hereof, Stockholder shall
deliver to the Voting Trustee the certificates representing all of the Existing
Shares, other than the Pledged Shares, together with five duly executed stock
powers, endorsed in blank, with signature guaranteed by a member of the
medallion guaranty program (the "Stock Powers" and, collectively with the
Existing Shares (other than the Pledged Shares) and any other Shares which it
may hereunder receive from the Stockholder pursuant to the Stockholder Agreement
being collectively, the "Voting Trust"). The Stockholder and the Voting Trustee
shall take such action as is necessary to effect the transfer of such shares of
Common Stock to, and in the name of, the Voting Trustee on the books of the
Company, including the immediate filing of a duplicate of this Agreement with
the secretary of the Company. After the filing of this Agreement in the
registered office of the Company pursuant to Section 10, certificates for the
Common Stock transferred and delivered to the Voting Trustee pursuant to this
Agreement shall be issued to and held by the Voting Trustee in the name of
American Stock Transfer & Trust Company, as Voting Trustee (such shares of
Common Stock being referred to herein as the "Voting Trust Stock"). The Voting
Trustee accepts the trust created hereby and upon receipt by the Voting Trustee
of the certificates for and upon the transfer of such shares of Common Stock
into the name of the Voting Trustee, the Voting Trustee shall hold the Voting
Trust Stock, as stockholder of record, in each case subject to the terms and
conditions of this Agreement. The Voting Trustee acknowledges receipt of copies
of the Merger Agreement and the Stockholder Agreement.
2. Stock Certificates.
On all certificates representing Voting Trust Stock, as well as in the
stock ledger of the Company, the following legend shall conspicuously appear:
"The shares of Common Stock evidenced by this stock certificate are
subject to certain restrictions contained in (i) the Voting Trust
Agreement dated as of July 10, 2000 (as it may hereafter be amended or
otherwise modified from time to time, the "Agreement"), by and among
Waxman USA, Inc., as Voting Trustee, Wilmar Industries, Inc.
("Wilmar"), BW Acquisition, Inc. ("BW Acquisition" and, together with
Wilmar, the "Purchaser") and Xxxxxxx Inc. (the "Company") and (ii) the
Certificate of Incorporation and By-laws of the Company, each as may be
amended from time to time. The holder of this stock certificate, by his
acceptance hereof, agrees to be bound by all the provisions of such
agreements and instruments, which agreements and instruments are
available for inspection by the owner hereof at the registered office
of the Company in the State of Delaware.
The shares represented by this stock certificate have not been
registered under the Securities Act of 1933. The shares have been
acquired for investment and may not be sold, transferred or assigned in
the absence of an effective registration statement for these shares
under the Securities Act of 1933 or an opinion of the
3
Company's counsel that registration is not required under said Act."
3. Issuance of Voting Trust Certificates.
Promptly after the creation of the Voting Trust hereunder, the Voting
Trustee shall issue to the Stockholder, in exchange for the Voting Trust Stock
delivered hereunder, a Voting Trust Certificate substantially in the form
annexed as Exhibit A hereto (the "Voting Trust Certificate"). Except as
otherwise expressly provided herein, all options, rights of purchase and other
rights, powers and privileges affecting or relating to the Voting Trust Stock,
shall attach to the Voting Trust Certificate.
4. Voting of the Voting Trust Stock.
The Voting Trustee shall have the right to exercise, in person or by
its nominees or proxies, all rights and powers to vote the shares of the Voting
Trust Stock deposited hereunder and to take part in or give consent with respect
to any lawful corporate action with respect to which such shares are able or
required to be voted as follows: The Voting Trustee shall vote the Shares of the
Voting Trust Stock: (a) in favor of the Merger; (b) against any action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Company under the Merger
Agreement; and (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger including, but not
limited to, (i) any extraordinary corporate transaction (other than the Merger),
such as a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company (a "Business
Combination Transaction"), (ii) a sale or transfer of a material amount of
assets of Company or any of its subsidiaries, (iii) any change in the management
or board of directors of Company, except as otherwise agreed to in writing by
Purchaser, (iv) any change in the present capitalization of the Company, or (v)
any other change in the corporate structure (including the charter, by-laws or
other organizational or constitutive documents) or business of the Company.
Voting Trustee agrees, without limiting the foregoing, that it shall consult
with Purchaser prior to any such vote and vote the Shares of the Voting Trust
Stock in such manner as is determined by Purchaser to be in compliance with the
provisions of this Section 4. With respect to all other matters not specified in
the foregoing sentence herein, Voting Trustee shall vote the Shares represented
by any Voting Trust Certificate in accordance with the written instructions of
the registered holder thereof.
5. Record of Beneficial Owners; Restriction on Transfer.
(a) The Voting Trustee shall keep a record on its books of the name of
each holder of a Voting Trust Certificate and the number of shares of Voting
Trust Stock beneficially owned by each holder.
(b) No holder of a Voting Trust Certificate shall transfer its Voting
Trust Certificate or the beneficial ownership of any Voting Trust Stock
represented by such Voting Trust Certificate without the written consent of
Purchaser.
(c) The transfer of a Voting Trust Certificate may be registered only
upon the books of the Voting Trustee kept for the registration and registration
of transfer of
4
Voting Trust Certificates upon surrender thereof to the Voting Trustee together
with transfer instructions duly executed by the registered owner having such
signature guaranteed by a member firm of the New York Stock Exchange or a
commercial bank or trust company, in such form as shall be reasonably
satisfactory to the Voting Trustee. Upon any such registration of transfer the
Voting Trustee shall execute and deliver in exchange for such Voting Trust
Certificate a new registered Voting Trust Certificate, registered in the name of
the transferee.
(d) If any mutilated Voting Trust Certificate is surrendered to the
Voting Trustee, or the Voting Trustee receives evidence to its satisfaction that
any Voting Trust Certificate has been destroyed, lost or stolen, and upon proof
of ownership satisfactory to the Voting Trustee together with such security or
indemnity as may be requested by the Voting Trustee to save it harmless, the
Voting Trustee shall execute and deliver a new Voting Trust Certificate for the
same number of shares of Voting Trust Stock as the Voting Trust Certificate so
mutilated, destroyed, lost or stolen, with such notations, if any, as the Voting
Trustee shall determine.
(e) Prior to due presentment of a Voting Trust Certificate for transfer
and compliance with the requirements of this Section 5, the Voting Trustee may,
except as otherwise required by law, treat the registered holder of any Voting
Trust Certificate as the owner thereof for all purposes whatsoever and shall not
be affected by any notice to the contrary.
(f) The Voting Trustee shall not (i) sell, assign (by operation of law
or otherwise) or otherwise dispose of, or grant any option with respect to, the
shares of Voting Trust Stock or (ii) create or suffer to exist any lien,
security interest or other charge or encumbrance of any kind, or any other type
of preferential arrangement (a "Lien") upon or with respect to any of the Voting
Trust Stock except for the Lien created by this Agreement.
6. Disbursement of Shares.
6.1. Company's Commitment to Purchase Shares.
(a) Five business days after receipt by Voting Trustee of a
certification from the Company that it has purchased certain shares of Common
Stock pursuant to that certain agreement, dated as of the date hereof, by and
between the Stockholder and the Company (the "Xxxxxxx Agreement"), such
certification to be in substantially the form of Exhibit B hereto (the "Standby
Closing Notice") no later than 5:00 p.m. New York City time on September 1,
2000, Voting Trustee shall immediately complete a Stock Power in favor of the
Company for the Purchase Shares, as determined in accordance with the Xxxxxxx
Agreement, date it the same date it received the Standby Closing Notice, and
deliver it, together with certificates representing the Purchase Shares, to
Company. If Voting Trustee does not have certificates representing the exact
number of Purchase Shares, it shall deliver to Company certificates representing
more than the Purchase Shares, together with instructions to the Company's
transfer agent (the "Transfer Agent"), which instructions the Company shall
cause to be delivered to the Transfer Agent, requesting that a certificate
representing the Shares in excess of the Purchase Shares be delivered to Voting
Trustee at its address set forth below. The Company shall cause a copy of the
Standby Closing Notice to be sent to the Stockholder at the same time it is sent
to Voting Trustee.
5
(b) If (i) the Effective Time (as defined in the Merger Agreement) has
not occurred on or prior to September 1, 2000 and (ii) the Company has not
repurchased from the Stockholder the Purchase Shares in accordance with the
Xxxxxxx Agreement by September 8, 2000, then, upon receipt by the Voting Trustee
of written notice from both the Stockholder and Purchaser to such effect, the
Stockholder shall be entitled to have transferred to it by the Voting Trustee
the Purchase Shares. To the extent that the net proceeds per share received by
the Stockholder from any sale of the Purchase Shares is less than the Merger
Consideration, Purchaser shall, within ten (10) days after the Effective Time,
pay to the Stockholder by wire transfer of immediately available funds to the
account or accounts designated for payment an amount equal to the product of (a)
the difference between the Merger Consideration and the net proceeds per share
received by the Stockholder for the Purchase Shares, multiplied by (b) the
number of Purchase Shares sold by the Stockholder.
(c) Upon the transfer of the Purchase Shares pursuant to Section 6.1(a)
or (b), the Stockholder shall surrender its Voting Stock Certificate to the
Voting Trustee, and the Voting Trustee shall issue to the Stockholder in
exchange a new Voting Stock Certificate representing the stated amount of Voting
Stock on the surrendered Voting Stock Certificate less the amount of Voting
Stock released from the Voting Trust in connection with such transfer.
6.2. The Merger. If Purchaser delivers to the Voting Trustee a notice
that the Effective Time has occurred (the "Merger Closing Notice"), the Voting
Trustee shall continue to hold the Voting Trust then held by it on the date of
such Merger Closing Notice and disburse it in accordance with the terms and
conditions of this Section 6.2. Promptly after the receipt from the Surviving
Corporation (as defined in the Merger Agreement) of a letter of transmittal and
other instructions concerning the surrender of the Shares in exchange for the
Merger Consideration, Voting Trustee shall complete and execute such documents
and promptly return them, together with the certificates representing all of the
Shares then held as part of the Voting Trust, as per the instructions received
from the Surviving Corporation. In completing such documents, Voting Trustee
shall instruct that the Merger Consideration be delivered to the following
address, or to such other address as Stockholder shall so notify Voting Trustee
in writing no later than five (5) business days following the Effective Time:
(a) the first $9,910,243.13 of Merger Consideration to: Chase Manhattan Bank,
x/x Xxxxxxxx Xxxxxxxxx Xxxx., XXX# 000000000, Acct. # 322001293, Client # 2555,
ref. # 6135 and (b) the remaining Merger Consideration to: Firstar N.A.
Milwaukee, WI, ABA # 000000000, Acct. Name Waxman USA Inc., Acct. # 821689312.
In furtherance of the foregoing, Stockholder hereby appoints and constitutes
Voting Trustee as its attorney-in-fact, with full power of substitution, to
complete any and all documents and to take any and all actions which are
necessary or appropriate in order to carry out the provisions and intent of this
Section 6.2.
7. Termination.
This Agreement shall terminate on the earliest of (a) immediately upon
the Voting Trustee having released the entire Voting Trust pursuant to Section
6.2 hereof, (b) 5:00 p.m. New York City time on November 30, 2000, but only if
the Effective Time has not occurred by such time, (c) any decrease in the Merger
Consideration from that referenced in the Merger Agreement as of the date hereof
or any other change (including by way of amendment, modification, waiver or
other acquiescence) relating to the Merger Consideration (including,
6
without limitation, any changes to the manner of calculating or paying,
including the timing thereof or conditions thereto, the Merger Consideration),
(d) any amendment to the Merger Agreement that adversely affects the Stockholder
and (e) fourteen (14) days after the occurrence of the stockholders meeting
called by the Company to approve the Merger as set forth in Section 5.5 of the
Merger Agreement, but only if the Effective Time has not occurred by such time.
The Stockholder and Purchaser shall jointly give written notice of such
termination to the Voting Trustee. Upon the receipt of the notice of termination
hereof, the Voting Trustee shall deliver all shares of Voting Trust Stock and
all Voting Trust Certificates to the Stockholder, and irrespective of any
delivery of such shares of Voting Trust Stock and such Voting Trust
Certificates, all rights incident thereof shall immediately vest solely in the
Stockholder.
8. Voting Trustee.
(a) The Voting Trustee shall have no duty or obligation hereunder other
than to take such specific actions as are required of it from time to time under
the provisions hereof, and it shall incur no liability hereunder or in
connection herewith for anything whatsoever other than as a result of its own
gross negligence or willful misconduct. Purchaser and Stockholder, jointly and
severally, agree to indemnify, hold harmless and defend the Voting Trustee from
and against any and all losses, claims, liabilities and reasonable expenses,
including the reasonable fees of its counsel, which it may suffer or incur
hereunder, or in connection herewith, except such as shall result solely and
directly from its own gross negligence or willful misconduct, and each of
Purchaser and Stockholder agree to contribute an amount equal to 50% of the
total amount paid to Voting Trustee pursuant to this Section 8(a). Anything in
this Agreement to the contrary notwithstanding, in no event shall the Voting
Trustee be liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Voting
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action. The foregoing indemnities in this paragraph shall survive
the resignation of the Voting Trustee or the termination of this Agreement. The
only duties and responsibilities of the Voting Trustee shall be to hold the
Voting Trust received hereunder, to vote the Voting Trust Stock and to disburse
such Voting Trust in accordance with the terms of this Agreement. The Voting
Trustee shall have no responsibility for the validity of any agreements referred
to in this Agreement, or for the performance of any such agreements by any party
thereto or for interpretation of any of the provisions of any such agreements.
The Voting Trustee shall be fully protected and shall not incur any liability in
acting in accordance with any written instructions given to it hereunder and
believed by it to have been executed by the proper person. The Voting Trustee
shall be under no duty to inquire into or investigate the validity or accuracy
of any such document. The Voting Trustee's fees and expenses for acting as
Voting Trustee hereunder are set forth in Schedule I hereto. Such fees and
expenses shall be shared equally by Purchaser and Stockholder.
(b) The Voting Trustee shall not be liable for any action taken or
omitted by it in good faith unless the loss to the parties hereto was primarily
caused by (i) the gross negligence or willful misconduct of the Voting Trustee
as determined by a court of competent jurisdiction or (ii) a breach by the
Voting Trustee of any of the terms contained in this Agreement. In the
administration of the Voting Trust hereunder, the Voting Trustee may execute any
of its powers and perform its duties hereunder directly or through agents or
attorneys and may consult with counsel, accountants and other skilled persons to
be selected and retained by it.
7
The Voting Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the advice or opinion of any such counsel,
accounts or other skilled persons unless the loss to the parties hereto was
primarily caused by (x) the gross negligence or willful misconduct of the Voting
Trustee as determined by a court of competent jurisdiction or (y) a breach by
the Voting Trustee of any of the terms contained in this Agreement.
(c) In the event that the Voting Trustee shall be uncertain as to its
duties or rights hereunder or shall receive instructions, claims or demands from
any party hereto or its designated representative which, in its opinion,
conflict with any of the provisions of this Agreement, it shall be entitled to
refrain from taking any action and its sole obligation shall be to keep safely
all property held in escrow until it shall be directed otherwise in writing by
all of the other parties hereto or by a final order or judgment of a court of
competent jurisdiction.
(d) The Voting Trustee may resign at any time by giving written notice
thereof to the other parties hereto, but such resignation shall not become
effective until a successor voting trustee shall have been appointed and shall
have accepted such appointment in writing. If any instrument of acceptance by a
successor voting trustee shall not have been delivered to the Voting Trustee
within 30 days after the giving of such notice of resignation, the resigning
Voting Trustee may at the expense of Purchaser and Stockholder, as to 50 percent
each, petition any court of competent jurisdiction for the appointment of a
successor voting trustee.
9. Obligation of Company.
For any meeting of Company's stockholders at which the Voting Trustee
shall be asked to vote, Company shall give the Voting Trustee, Purchaser and the
registered holder of the Voting Trust Certificate written notice setting forth
the date, time and place of the meeting and the matters to be considered. Such
notification shall be sent to the Voting Trustee, Purchaser and the registered
holder of any Voting Trust Certificate not less than ten (10) business days nor
more than sixty (60) days prior to such meeting.
10. Other Obligation of the Voting Trustee.
The Voting Trustee shall file a copy of this Agreement (and any
amendments hereto) in the registered office of the Company in the State of
Delaware, which copy the Company shall cause to be open to the inspection of any
stockholder of the Company and any holder of a Voting Trust Certificate daily
during business hours. The Company's registered office in Delaware is located at
the Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000, and the Company's registered agent at that address is The
Corporation Trust Company.
11. Notices.
All notices, deliveries or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein), given in
the manner provided in the Merger Agreement, and shall be deemed duly given when
received, addressed as follows:
If to Purchaser:
8
Wilmar Industries, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Stockholder:
Waxman USA Inc.
c/o Waxman Industries, Inc.
00000 Xxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company:
Xxxxxxx Inc.
000 Xxxx Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
9
With a copy to:
Xxxxx & Xxxxxxx
Xxxx Xxxxxx Xxx 000
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Voting Trustee:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
12. Entire Agreement; Amendment.
This Agreement, together with the documents expressly referred to
herein, constitute the entire agreement among the parties hereto with respect to
the subject matter contained herein and supersede all prior agreements and
understandings among the parties with respect to such subject matter. This
Agreement may not be modified, amended, altered or supplemented except by an
agreement in writing executed by the Voting Trustee, Purchaser and the
Stockholder.
13. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns and personal
representatives, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties.
14. Governing Law.
Except as expressly set forth below, 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 conflicts of laws thereof. In addition, each of Stockholder and Purchaser
hereby agree that any dispute arising out of this Agreement shall be heard in
the Chancery Court of the State of Delaware or in the United States District
Court for the District of Delaware and, in connection therewith, each party to
this Agreement hereby consents to the jurisdiction of such courts and agrees
that any service of process in connection with any dispute arising out of this
Agreement may be given to any other party hereto by certified mail, return
receipt requested, at the respective addresses set forth in Section 11 above.
10
15. Injunctive Relief.
The parties agree that in the event of a breach of any provision of
this Agreement, the aggrieved party may be without an adequate remedy at law.
The parties therefore agree that in the event of a breach of any provision of
this Agreement, the aggrieved party shall be entitled to obtain in any court of
competent jurisdiction a decree of specific performance or to enjoin the
continuing breach of such provision, in each case without the requirement that a
bond be posted, as well as to obtain damages for breach of this Agreement. By
seeking or obtaining such relief, the aggrieved party will not be precluded from
seeking or obtaining any other relief to which it may be entitled.
16. Counterparts; Facsimile Signatures.
This Agreement may be executed, including execution by facsimile, in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same document.
17. Severability.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
18. Further Assurances.
Each party hereto shall execute and deliver such additional documents
as may be necessary or desirable to consummate the transactions contemplated by
this Agreement.
19. Third Party Beneficiaries.
Nothing in this Agreement, expressed or implied, shall be construed to give
any person other than the parties hereto any legal or equitable right, remedy or
claim under or by reason of this Agreement or any provision contained herein.
20. Legal Expenses.
In the event any legal proceeding is commenced by any party to this
Agreement to enforce, or recover damages for any breach of, the provisions
hereof, the prevailing party in such legal proceeding shall be entitled to
recover in such legal proceeding from the losing party such prevailing party's
costs and expenses incurred in connection with such legal proceedings, including
reasonable attorneys fees and disbursements.
11
IN WITNESS WHEREOF, Voting Trustee, Stockholder, Purchaser, and Company
have caused this Agreement to be executed by their duly authorized officers,
each as of the date and year first above written.
American Stock Transfer & Trust Company, as Voting Trustee
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
12
Waxman USA Inc.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: President and Co-CEO
Wilmar Industries, Inc.
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
BW Acquisition, Inc.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Xxxxxxx Inc.
By: /s/ W. Pray
---------------------------
Name: W. Pray
Title: C.E.O.
EXHIBIT A
TO THE
VOTING TRUST AGREEMENT
Form of
Voting Trust Certificate
Registered Holder:________________ Certificate No.__
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER
ENCUMBRANCE OF THIS VOTING TRUST CERTIFICATE OR THE COMMON STOCK REFERRED TO
HEREIN IS SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS SET FORTH IN THE
VOTING TRUST AGREEMENT DESCRIBED IN THIS CERTIFICATE AND PURSUANT TO WHICH THIS
CERTIFICATE IS ISSUED. THIS CERTIFICATE AND SUCH COMMON STOCK ARE SUBJECT TO AND
MAY BE TRANSFERRED OR ENCUMBERED ONLY IN ACCORDANCE WITH SUCH AGREEMENT, A
DUPLICATE OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION.
Voting Trust Certificate
for
6,186,530 shares of Common Stock
$0.01 par value per share
of
XXXXXXX INC.,
a Delaware corporation
THIS IS TO CERTIFY THAT, upon the termination of a certain Voting Trust
established by a Voting Trust Agreement, dated as of July 10, 2000 (as amended,
modified or supplemented from time to time in accordance with its terms, the
"Agreement"), by and among American Stock Transfer & Trust Company, as voting
trustee (the "Voting Trustee"), Waxman
USA Inc., a Delaware corporation (the "Stockholder"), Wilmar Industries, Inc., a
New Jersey corporation ("Wilmar"), BW Acquisition, Inc., a Delaware corporation
and a wholly-owned subsidiary of Wilmar ("BW Acquisition" and, together with
Wilmar, "Purchaser"), pursuant to which this certificate has been issued, the
Stockholder, as registered holder of this certificate, will be entitled to
receive certificates for the shares hereinabove specified (the "Shares") and,
for the duration of such Agreement, to receive distributions equal to the cash
or property or non-voting stock distributions, if any, received by the Voting
Trustee upon a like number of the Shares standing in its name. Prior to the
termination of the Agreement, the Voting Trustee, with respect to the Shares,
shall possess and be entitled to exercise, in the manner and only to the extent
provided in the Agreement, all the rights of every kind of the holder of this
certificate, including the right to vote and to take part in, or to consent to
any corporate or shareholders' action, it being expressly stipulated that no
right to vote, or take part in, or to consent to any corporate or shareholders'
action with respect to the matters set forth in Section 4(a)-(c) of the
Agreement, shall pass to the registered holder hereof by, or under, this
certificate.
This certificate is not transferable except as permitted by the
Agreement, and is not valid unless signed by the Voting Trustee. The holder
hereof, by accepting this certificate, manifests its consent that the
undersigned Voting Trustee may treat the registered holder hereof as the true
owner of this certificate for all purposes.
IN WITNESS WHEREOF, the undersigned, the Voting Trustee has caused this
certificate to be signed as of the __ day of July, 2000.
American Stock Transfer & Trust Company,
as Voting Trustee
By:
-----------------------------------------
Name:
Title:
EXHIBIT B
TO THE
VOTING TRUST AGREEMENT
Form of Standby Closing Notice
The undersigned, Xxxxxxx Inc., a Delaware corporation (the "Company"),
hereby certifies and states to American Stock Transfer & Trust Company (the
"Voting Trustee") as follows:
1. This certificate is a "Standby Closing Notice" within the meaning a
Section 6.1 of that certain Voting Trust Agreement dated July 10, 2000 (the
"Voting Trust Agreement") among Wilmar Industries, Inc., a New Jersey
corporation ("Wilmar"), BW Acquisition, Inc., a Delaware corporation and a
wholly-owned subsidiary of Wilmar ("BW Acquisition" and, together with Wilmar,
"Purchaser"), Company, Voting Trustee and Waxman USA Inc., a Delaware
corporation ("Stockholder"), and a copy of this certificate has been sent to
Stockholder on the date hereof.
2. Company has repurchased from Stockholder ______ shares of its Common
Stock, par value $0.01 per share, of Company in accordance with that certain
agreement, dated as of July 10, 2000, by and between the Stockholder and the
Company (the "Xxxxxxx Agreement"),and delivered to Stockholder the purchase
price therefor immediately available U.S. dollars in accordance with the terms
of the Xxxxxxx Agreement.
3. Voting Trustee is hereby instructed to deliver certificates
representing __________________ shares of Common Stock of the Company, together
with a duly completed and executed Stock Power (as defined in the Voting Trust
Agreement), to Company at the following address:
----------------------
----------------------
----------------------
4. Voting Trustee is entitled to rely on this certificate in accordance
with the terms of the Voting Trust Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of the day of , 2000.
Xxxxxxx Inc.
By:
------------------------------
Name:
Title:
SCHEDULE I
VOTING TRUSTEE FEES AND EXPENSES
[$2500 plus reasonable out-of-pocket expenses]
