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STOCKHOLDER'S AGREEMENT
between
XXXXXX INDUSTRIES, INC.
AND
THE CELOTEX CORPORATION, IN
ITS CAPACITY AS THE CELOTEX
SETTLEMENT FUND RECIPIENT
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March 17, 1995
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TABLE OF CONTENTS
Page
1. Restrictions on Transfer of Shares Owned by Celotex.......................1
2. Voting of Common Stock Owned by Celotex...................................1
3. After-Acquired Securities.................................................2
4. Stock Certificate Legend..................................................2
5. Representations and Warranties of the Parties.............................2
5.1 Authority............................................................2
5.2 Binding Obligations..................................................3
5.3 No Conflicts/Approvals...............................................3
6. Specific Performance......................................................3
7. Miscellaneous.............................................................3
7.1 Notices..............................................................3
7.2 Severability.........................................................4
7.3 Third-Party Beneficiary..............................................4
7.4 Amendment............................................................4
7.5 Waiver...............................................................4
7.6 Variations in Pronouns...............................................5
7.7 Governing Law........................................................5
7.8 Further Assurance....................................................5
7.9 Successors and Assigns...............................................5
7.10 Counterparts.........................................................5
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STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of March 17, 1995, by and between
Xxxxxx Industries, Inc., a Delaware corporation (the "Company"), and The
Celotex Corporation, solely in its capacity as the Celotex Settlement Fund
Recipient under the Second Amended and Restated Veil Piercing Settlement
Agreement dated as of November 22, 1994 ("Celotex"), as the same may be amended
or modified (the "VPSA").
WHEREAS, each of Celotex, solely as the Celotex Settlement Fund
Recipient, and holders of Allowed Claims in Classes X-0, X-0, X-0, U-4, U-5,
U-6 and holders of Class E-1 Interests will acquire shares of New Common Stock,
par value $.01 per share, of the Company pursuant to the Amended Joint Plan of
Reorganization dated as of December 9, 1994, as the same may be amended or
modified (the "Consensual Plan").
All capitalized terms used herein and not otherwise defined herein
have the meaning ascribed to them in the Consensual Plan.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Restrictions on Transfer of Shares Owned by Celotex. Celotex shall
not, nor shall Celotex permit any of its Affiliates to, offer, sell, transfer,
give, assign, hypothecate, pledge, encumber, grant a security interest in or
otherwise dispose of (whether by operation of law or otherwise) (collectively,
"transfer") any shares of New Common Stock or any right, title or interest
therein or thereto to any Person that is (a) a successor to Celotex as a
Celotex Settlement Fund Recipient, (b) a beneficiary of the Celotex Settlement
Fund Recipient or (c) as creditor of The Celotex Corporation, in its capacity
as such, unless in each case such Person delivers to the Company in instrument,
in form and substance reasonably satisfactory to the Company, pursuant to which
it agrees to be bound by the terms and conditions of this Agreement to the same
extent as Celotex is bound.
2. Voting of Common Stock Owned by Celotex. In any vote or action by
written consent by holders of New Common Stock voting or taking action by
written consent on any matter submitted to a vote of stockholders of the
Company, Celotex will vote or execute written consents with respect to its
shares of New Common Stock for and/or against such matter in proportion to the
votes cast or consents executed and delivered by the other holders of New
Common Stock who voted or executed and delivered written consents, as votes,
and Celotex shall have no responsibility for the
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determination thereof. Celotex shall be present, in person or by proxy, at all
meetings of holders of New Common Stock so that all shares of New Common Stock
beneficially owned by Celotex may be counted for the purpose of determining the
presence of a quorum at such meeting.
3. After-Acquired Securities. All of the provisions of this Agreement
shall apply to all of the shares of New Common Stock or other voting securities
of the Company now owned or which may be issued or transferred hereafter to
Celotex as a result of its ownership of New Common Stock, whether such issuance
or transfer is in respect of, in exchange for, in substitution of or in
reclassification of, any shares of New Common Stock, or is in consequence of
any purchase as a result of its exercise of option or other rights granted in
connection with its ownership of New Common Stock, corporate reorganization or
any other form of recapitalization, consolidation, merger, share split or share
dividend or otherwise.
4. Stock Certificate Legend. A copy of this Agreement shall be filed
with the Secretary of the Company and kept with the records of the Company.
Each certificate representing shares of New Common Stock or other voting
securities of the Company referred to in Section 3 above now held or hereafter
acquired by or issued or transferred to Celotex shall, for as long as this
Agreement is effective, bear a legend as follows:
The securities represented by this Certificate are restricted by the
terms of the Stockholder's Agreement, dated as of March 17, 1995
between the Company and The Celotex Corporation, in its capacity as
the Celotex Settlement Fund Recipient, a copy of which may be
inspected at the Company's principal office.
5. Representations and Warranties of the Parties. Celotex represents
and warrants to the Company that:
5.1 Authority. The execution, delivery and performance of
this Agreement by it has been duly authorized by all necessary action.
5.2 Binding Obligation. It has duly and validly executed
and delivered this Agreement, and this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in
accordance with its terms.
5.3 No Conflicts/Approvals. The execution, delivery and
performance of this Agreement will not conflict with or result
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in the breach or violation of any of the terms or conditions of, or
constitute (or with notice or lapse of time or both, would constitute)
a default under (i) its constituting or governing documents; (ii) any
instrument, contract or other agreement by or to which it is a party
or its assets are bound or subject; (iii) any statute, regulation,
order, judgment or decree of any court of governmental or regulatory
body; or (iv) any license, permit, order or approval of any
governmental or regulatory body respecting it or its business. No
approval or consent of any foreign, Federal, state, county, local or
other governmental or regulatory body or court or other Person is
required in connection with the execution, delivery or performance of
this Agreement by it.
6. Specific Performance. The parties hereto intend that the Company
has the right to seek specific performance i the event that Celotex fails to
perform its obligations hereunder. Therefore, if the Company shall institute
any action or proceeding to enforce the provisions hereof, Celotex hereby
waives any claim or defense therein that the Company has an adequate remedy at
law.
7. Miscellaneous.
7.1 Notices. All notices or other communication required or
permitted hereunder shall be in writing and shall be delivered
personally, telegraphed or telexed, or sent by facsimile transmission
or sent by certified, registered or express mail or, if mailed, give
days after the date of deposit in the United States mail, as follows:
(i) If to the Company, to it at:
Xxxxxx Industries, Inc.
0000 Xxxxx Xxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
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(ii) if to Celotex, to it at:
The Celotex Corporation
0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 000000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
with a copy to:
Xxxx Xxxx Gardens Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
Any party may by notice given in accordance with this Section 7.1
designate another address or person for receipt of notices hereunder.
7.2 Severability. In the event any provision hereof is held
void or unenforceable by any court, then such provisions shall be
severable and shall not affect the remaining provisions hereof.
7.3 Third-Party Beneficiary. Each stockholder of the Company
is a third-party beneficiary to this Agreement and is entitled to the
rights and benefits hereunder, and each Person who beneficially owns,
as such term is defined in Rule 13d-3 of the Securities Exchange Act
of 1934, as amended, 5% or more of the outstanding New Common Stock
(each, a "5% Third Party Beneficiary") may enforce the provisions
hereof as it if were a party hereto.
7.4 Amendment. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties
hereto, with the consent of each 5% Third Party Beneficiary.
7.5 Waiver. Any failure by a party hereto to comply with any
obligation, agreement or condition herein may be expressly waived in
writing by each of the other parties hereto and with the consent of
each 5% Third Party Beneficiary, but such waiver or failure to insist
upon strict compliance with such obligation, agreement or condition
shall
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not operate as a waiver of, or estoppel with respect to, any such
subsequent or other failure.
7.6 Variations in Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or
plural, as the context may require.
7.7 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed entirely within such
State.
7.8 Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates to, execute such instruments and
take such action as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and legal representatives.
7.9 Successors and Assigns. This Agreement shall insure to
the benefit of the parties hereto and their respective successors and
assigns and shall be binding on successors and assigns of Celotex to
the extent provided in Section 3.22(c) of the Consensual Plan and
Appendix A paragraph P to the VPSA.
7.10 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Agreement as of the date first written above.
XXXXXX INDUSTRIES, INC.
BY: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
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THE CELOTEX CORPORATION
in its capacity as the
Celotex Settlement Fund
Recipient
BY: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President and
Chief Executive Officer
