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EXHIBIT 3
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT, dated as of October 26, 1999 (this
"Agreement"), by and between Lennox International Inc., a Delaware corporation
("Lennox"), and Xxxx X. Xxxxxxxx (the "Shareholder").
WHEREAS, Service Experts, Inc., a Delaware corporation ("SEI"), has
entered into an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"; capitalized terms not defined in this Agreement have the
meanings ascribed to them in the Merger Agreement), with Lennox and LII
Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of
Lennox ("Merger Sub"), that provides, among other things, upon the terms and
subject to the conditions thereof, for the merger of Merger Sub with and into
SEI (the "Merger").
WHEREAS, as a condition to the willingness of Lennox to enter into the
Merger Agreement, Lennox has required that the Shareholder agree, and in order
to induce Lennox to enter into the Merger Agreement, the Shareholder has agreed,
to vote, in accordance with the terms of this Agreement, all the shares of SEI
Common Stock set forth opposite Shareholder's name on Schedule A hereto and any
and all shares of SEI Common Stock that may hereafter be acquired by the
Shareholder in his or her individual capacity (collectively, the "Shares"),
whether pursuant to stock option agreements, warrants or otherwise.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE SHAREHOLDER
SECTION 1.1. Authority Relative to This Agreement. Shareholder is
competent to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly and validly executed and delivered by
Shareholder and, assuming the due authorization, execution and delivery by
Lennox, constitutes a legal, valid and binding obligation of Shareholder,
enforceable against Shareholder in accordance with its terms.
SECTION 1.2. No Conflict. The execution and delivery of this Agreement
by Shareholder does not, and the performance of this Agreement by Shareholder
shall not, result in any breach of or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or encumbrance, on any of the Shares pursuant
to, any note, bond,
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mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Shareholder is a party or by which
Shareholder or the Shares are bound or affected.
SECTION 1.3. Marketable Title. Shareholder represents and warrants to
Lennox that Shareholder has good and marketable title to the Shares, free and
clear of all liens, claims, charges and encumbrances and has full power and
authority to exercise all voting rights in respect thereof.
SECTION 1.4. Revocation of Proxies. Shareholder hereby revokes any and
all previous proxies granted with respect to the Shares.
SECTION 1.5. Agreement to Vote the Shares for the Merger. Shareholder
agrees that he or she will attend (either in person or by proxy) any meeting of
the shareholders of SEI to be held for the purpose of obtaining shareholder
approval of the Merger and the Merger Agreement and that Shareholder will vote
(or consent in lieu of a meeting of shareholders) all the Shares in favor of
approval of the Merger and the Merger Agreement.
SECTION 1.6. Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out and
comply with all of such party's obligations under this Agreement, including
without limitation any actions reasonably requested by Lennox or SEI in
connection with obtaining any required consents or approvals to the actions
contemplated hereby under the HSR Act or the Exchange Act. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would materially impair the ability of any party to
effectuate, carry out or comply with all of the terms of this Agreement. The
parties hereto understand and agree that notwithstanding any other provision
contained herein, Shareholder is not prohibited from affecting any sale,
transfer, assignment, division or any other disposition of Shares at any time,
and the obligation to vote the Shares as provided in Section 1.5 of this
Agreement applies only to the Shares owned by the Shareholder at the time of the
events referred to in such section.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF LENNOX
SECTION 2.1 Authority Relative to This Agreement. Lennox has all
requisite corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement has been duly and
validly executed and delivered by Lennox and, assuming the due
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authorization, execution and delivery by Shareholder, constitutes a legal, valid
and binding obligation of Lennox, enforceable against Lennox in accordance with
its terms.
SECTION 2.2 No Conflict. The execution and delivery of this Agreement
by Lennox does not, and the performance of this Agreement by Lennox shall not,
result in any material breach of or constitute a material default (or an event
that with notice or lapse of time or both would become a material default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any material note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other material instrument or
obligation to which Lennox is a party or by which Lennox is bound or affected.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses.
SECTION 3.2. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance or injunctive relief in respect of the terms
hereof.
SECTION 3.3. Entire Agreement. This Agreement constitutes the entire
agreement between Lennox and Shareholder with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Lennox and Shareholder with respect to the subject matter hereof.
SECTION 3.4. Assignment. This Agreement shall not be assigned by
operation of law or otherwise (other than by will or the laws of descent and
distribution).
SECTION 3.5. Parties in Interest. This Agreement shall inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any person other than the parties hereto any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 3.6. Amendment; Waiver. This Agreement may not be amended
except by an instrument in writing signed by each of the parties hereto. Any
party hereto may (i) extend the time for the performance of any obligation or
other act of any other party hereto, (ii) waive any inaccuracy in the
representations and warranties contained herein or in any document delivered
pursuant hereto
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and (iii) waive compliance with any agreement or condition contained herein. Any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
SECTION 3.7. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 3.8. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 3.8):
if to Lennox:
Lennox International Inc.
0000 Xxxx Xxxx Xxxx.
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
if to Shareholder:
Service Experts, Inc.
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
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with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
and
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx,
A Professional Limited Liability Company
000 Xxxxx Xxxxxx
Xxxxx 0000, Xxxxxxxxx Xxxx Center
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: X. Xxxxx Xxxx, Esq.
SECTION 3.9. Termination. This Agreement shall terminate upon the
Effective Date or upon the termination of the Merger Agreement in accordance
with the termination provisions provided therein.
SECTION 3.10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflicts of law.
SECTION 3.11 Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby or thereby shall be
brought in any federal or state court located in the State of Delaware, and each
of the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 3.8 shall be deemed
effective service of process on such party.
SECTION 3.12. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 3.13. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, Lennox has caused this Agreement to be executed by
its respective officer thereunto duly authorized and Shareholder has duly
executed this Agreement, each as of the date first written above.
LENNOX INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Financial Officer and Treasurer
SHAREHOLDER
/s/ Xxxx X. Xxxxxxxx
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SCHEDULE A
SEI COMMON STOCK 781,252 SHARES
A-1
