TRANSACTION SUPPORT AGREEMENT
This Transaction Support Agreement, dated as of June 11, 2002
(this "Agreement"), is made by and among Cemex, S.A. de C.V., a Mexico
corporation ("Parent"), Tricem Acquisition, Corp., a Puerto Rico corporation
("Purchaser"), and the stockholder of Puerto Rican Cement Company, Inc., a
Puerto Rico corporation (the "Company"), identified on the signature page
hereto (the "Stockholder").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Parent, Purchaser and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as it may be
amended from time to time, the "Merger Agreement"; capitalized terms used and
not otherwise defined in this Agreement have the meanings ascribed to such
terms in the Merger Agreement), pursuant to which (i) Purchaser shall
commence a cash tender offer (as such tender offer may hereafter be amended
from time to time in accordance with the Merger Agreement, the "Offer") to
acquire each issued and outstanding share of common stock, par value $1.00
per share, of the Company ("Common Stock") in exchange for a net amount of
$35.00 in cash (the "Offer Price") in accordance with and subject to the
terms and conditions of the Merger Agreement and the Offer; and (ii)
following consummation of the Offer, the Company shall merge with Purchaser
(the "Merger");
WHEREAS, the Stockholder is the record or beneficial owner of the
number of shares of Common Stock set forth on Schedule A hereto (all such
shares of Common Stock and any shares of Common Stock hereafter acquired by
the Stockholder, the "Shares");
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, including the Offer, Parent and
Purchaser have required that the Stockholder agree to enter into this
Agreement and certain other stockholders of the Company agree to enter into
similar Transaction Support Agreements; and
WHEREAS, the Stockholder wishes to induce Parent and Purchaser to
enter into the Merger Agreement and, therefore, the Stockholder is willing to
enter into this Agreement.
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 agree as follows:
ARTICLE I
TENDER OF SHARES
Section 1.01 Tender of Shares. The Stockholder agrees to promptly
(and, in any event, not later than two Business Days prior to the scheduled
expiration date of the Offer) tender or cause to be tendered into the Offer,
pursuant to and in accordance with the terms of the Offer, and not withdraw
or cause to be withdrawn (except following the termination of the Offer in
accordance with its terms), all of the Shares. The Stockholder acknowledges
and agrees that Purchaser's obligation to accept for payment shares of Common
Stock in the Offer, including any Shares tendered by a Stockholder, is
subject to the terms and conditions of the Merger Agreement and the Offer.
ARTICLE II
VOTING AGREEMENT
Section 2.01 Voting Agreement. The Stockholder hereby agrees
that, from and after the date hereof and until the date (the "Voting
Termination Date") that is the later of (i) the termination of the Merger
Agreement in accordance with its terms or (ii) the Option Termination Date
(as defined below), if any, at any meeting of the stockholders of the
Company, however called, and in any action by consent of the stockholders of
the Company, the Stockholder shall vote (or cause to be voted) all the Shares
(i) in favor of adoption of the Merger Agreement, the Merger and all the
transactions contemplated by the Merger Agreement and this Agreement and
otherwise in such manner as may be necessary to consummate the Merger; (ii)
against any action, proposal, agreement or transaction that would result in a
breach of any covenant, obligation, agreement, representation or warranty of
the Company under the Merger Agreement or of the Stockholder contained in
this Agreement; and (iii) against any action, agreement, transaction (other
than the Merger Agreement or the transactions contemplated thereby) or
proposal (including any Takeover Proposal or Superior Proposal) that could
reasonably be expected to result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled or that is
intended, or could reasonably be expected, to impede, interfere, delay,
discourage or adversely affect the Merger Agreement, the Offer, the Merger or
this Agreement. Any vote by the Stockholder that is not in accordance with
this Section 2.01 shall be considered null and void, and the provisions of
Section 2.02 shall be deemed to take immediate effect.
Section 2.02 Irrevocable Proxy. If, and only if, the Stockholder
fails to comply with the provisions of Section 2.01, the Stockholder hereby
agrees that such failure shall result, without any further action by the
Stockholder effective as of the date of such failure, in the constitution and
appointment of Parent and each of its executive officers from and after the
date of such determination until the Voting Termination Date (at which point
such constitution and appointment shall automatically be revoked) as the
Stockholder's attorney, agent and proxy (such constitution and appointment,
the "Irrevocable Proxy"), with full power of substitution, to vote and
otherwise act with respect to all the Shares at any meeting of the
stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting), and in any action by written consent of the
stockholders of the Company, on the matters and in the manner specified in
Section 2.01. THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED
WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE
VALID AND BINDING ON ANY PERSON TO WHOM THE STOCKHOLDER MAY TRANSFER ANY OF
ITS SHARES IN BREACH OF THIS AGREEMENT. The Stockholder hereby revokes all
other proxies and powers of attorney with respect to all the Shares that may
have heretofore been appointed or granted, and no subsequent proxy or power
of attorney shall be given (and if given, shall not be effective) by the
Stockholder with respect thereto. All authority herein conferred or agreed to
be conferred shall survive the death or incapacity of the Stockholder and any
obligation of the Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of the Stockholder.
ARTICLE III
THE OPTION
Section 3.01 Grant of Option. The Stockholder hereby grants to
Parent an irrevocable option (each, an "Option" and, collectively, the
"Options") to purchase all of the Shares (the "Option Shares") at a purchase
price per Share (the "Purchase Price") equal to $35.00, less the value of any
dividends per Option Share declared or paid from and after the date of this
Agreement through the end of the Option Exercise Period and subject to
adjustment pursuant to Section 7.13(a), other than any dividends paid in
accordance with clause (A) of Section 8.2(b)(3) of the Merger Agreement.
Section 3.02 Payment of the Purchase Price. The Purchase Price
shall be payable by Parent in cash by wire transfer in immediately available
funds to a bank account to be designated by the Stockholder in a written
notice to Parent at least two Business Days prior to the Closing Date (as
defined below).
Section 3.03 Exercise of Option.
(a) If either (i) a Termination Fee has been paid or is payable
pursuant to Section 10.3 of the Merger Agreement, (ii) the Merger Agreement
is terminated as a result of the failure to satisfy the Minimum Condition (as
defined in the Merger Agreement) to the Offer and at or prior to the time of
such termination it has become publicly known that a Takeover Proposal has
been made or (iii) if a Subsequent Amendment (as defined in the Merger
Agreement) is received by the Company or becomes publicly known, then each of
the Options shall become exercisable by Parent for a period (the "Option
Exercise Period") commencing on the earlier of the date on which a Subsequent
Amendment is received by Company or becomes publicly known and the date on
which the Merger Agreement is terminated and ending at 11:59 p.m. (New York
time) on the 30th day following the date on which the Merger Agreement is
terminated (the day on which the Option Exercise Period ends, the "Option
Termination Date"). The Options shall be exercisable in whole but not in
part, and in no event shall Parent be permitted to exercise an Option with
respect to the Shares unless Parent concurrently exercises all Options to
purchase the shares of Common Stock subject to each Transaction Support
Agreement from all stockholders who have executed a Transaction Support
Agreement.
(b) If Parent wishes to exercise the Options during the Option
Exercise Period, Parent shall send a written notice (the "Exercise Notice")
to the Stockholder of its intention to exercise the Stockholder's Option,
specifying the place, and, if then known, the time and the date (the "Closing
Date") of the closing of such purchase (the "Closing"). The Closing Date
shall, subject to satisfaction of the conditions in paragraph (d), occur on
the later of (i) the third Business Day after the date on which such Exercise
Notice is delivered and (ii) one Business Day following the expiration or
termination of the waiting period under the HSR Act applicable to the
consummation of the purchase and sale of the Shares hereunder.
(c) At the Closing, (i) the Stockholder shall deliver to Parent
(or its designee) the Shares by delivery of a certificate or certificates
evidencing such Shares duly endorsed to Parent or accompanied by stock powers
duly executed in favor of Parent, with all necessary stock transfer stamps
affixed, and (ii) Parent shall pay for the Shares in accordance with Section
3.02.
(d) The Closing shall be subject to the satisfaction or, in the
case of clause (iii) below, waiver by the Stockholder of each of the
following conditions:
(i) no Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any Law that is then in effect and no
order of any Governmental Authority shall have been entered or be in
effect, in either case that has the effect of making the acquisition of
the Shares by Parent illegal or otherwise restricting, preventing or
prohibiting consummation of the purchase and sale of the Shares pursuant
to the exercise of the Options; and
(ii) any waiting period under the HSR Act applicable to the
consummation of the purchase and sale of the Shares hereunder shall have
expired or been terminated.
(e) At the Closing, (i) the Stockholder will deliver good and
valid title to the Shares free and clear of any Liens and, upon delivery to
Parent of such Shares and payment for the Purchase Price therefor as
contemplated herein, Parent will receive good, valid and marketable title to
the Shares free and clear of any Liens, and (ii) Parent shall deliver to the
Stockholder the Purchase Price.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and to
Purchaser as follows:
Section 4.01 Organization, Authority and Qualification of the
Stockholder. The Stockholder is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization or formation
and has all necessary power and authority to enter into this Agreement, to
carry out its obligations hereunder and to consummate the transactions
contemplated hereby. The Stockholder is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing
or qualification necessary, except to the extent that the failure to be so
licensed or qualified would not prevent or materially delay the ability of
the Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement. The execution and delivery of
this Agreement by the Stockholder, the performance by the Stockholder of its
obligations hereunder and the consummation by the Stockholder of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Stockholder. This Agreement has been duly and
validly executed and delivered by the Stockholder and (assuming due
authorization, execution and delivery by Parent and Purchaser) this Agreement
constitutes a legal, valid and binding obligation of the Stockholder
enforceable against the Stockholder in accordance with its terms.
Section 4.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the
Stockholder shall not, (i) conflict with or violate the certificate of
incorporation and by-laws, agreement of limited partnership, limited
liability company agreement or equivalent organizational documents, as the
case may be, of the Stockholder, (ii) assuming satisfaction of the
requirements set forth in 4.02(b) below, conflict with or violate any Law
applicable to the Stockholder or by which any property or asset of the
Stockholder is bound or affected or (iii) result in any breach of, or
constitute a default (or 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 on any Shares (other than pursuant to this Agreement) pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation of the Stockholder, except for
any such conflicts, violations, breaches, defaults or other occurrences that
would not prevent or materially delay the ability of the Stockholder to carry
out its obligations under, and to consummate the transactions contemplated
by, this Agreement.
(b) The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the
Stockholder shall not, require any consent, approval, authorization or permit
of, or filing with, or notification to, any Governmental Authority, except
(i) for applicable requirements, if any, of the Exchange Act, Blue Sky Laws
and the premerger notification requirements of the HSR Act, and (ii) where
the failure to obtain such consents, approvals, authorizations or permits, or
to make such filings or notifications, would not prevent or materially delay
the ability of the Stockholder to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement.
Section 4.03 Ownership of Shares. As of the date hereof, the
Stockholder is the record or beneficial owner of, and has good title to, the
number of Shares set forth on Schedule A hereto. Except as set forth on
Schedule A, the Shares are all the securities of the Company owned, either of
record or beneficially, by the Stockholder as of the date hereof and the
Stockholder does not have any option or other right to acquire any other
securities of the Company. The Shares owned by the Stockholder are owned free
and clear of all Liens, other than any Liens created by this Agreement.
Except as provided in this Agreement, the Stockholder has not appointed or
granted any proxy, which appointment or grant is still effective, with
respect to the Shares owned by the Stockholder.
Section 4.04 Absence of Litigation. As of the date of this
Agreement, there is no litigation, suit, claim, action, proceeding or
investigation pending or, to the knowledge of the Stockholder, threatened
against the Stockholder, or any property or asset of the Stockholder, before
any Governmental Authority that seeks to delay or prevent the consummation of
the transactions contemplated by this Agreement.
Section 4.05 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Each of Parent and Purchaser hereby severally but not jointly
represents and warrants to the Stockholder as to itself as follows:
Section 5.01 Organization, Authority and Qualification. Each of
Parent and Purchaser is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all necessary
power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
Each of Parent and Purchaser is duly licensed or qualified to do business and
is in good standing in each jurisdiction in which the properties owned or
leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so
licensed or qualified would not prevent or materially delay the ability of
Parent or Purchaser to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement. The execution and delivery of
this Agreement by each of Parent and Purchaser, the performance by each of
Parent and Purchaser of its obligations hereunder and the consummation by
each of Parent and Purchaser of the transactions contemplated hereby have
been duly authorized by all requisite action on the part of each of Parent
and Purchaser. This Agreement has been duly and validly executed and
delivered by each of Parent and Purchaser and (assuming due authorization,
execution and delivery by the Stockholder) this Agreement constitutes a
legal, valid and binding obligation of each of Parent and Purchaser
enforceable against Parent and Purchaser in accordance with its terms.
Section 5.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by each of
Parent and Purchaser do not, and the performance of this Agreement by each of
Parent and Purchaser shall not, (i) conflict with or violate the certificate
of incorporation and by-laws of Parent or Purchaser, (ii) assuming
satisfaction of the requirements set forth in Section 5.02(b) below, conflict
with or violate any Law applicable to Parent or Purchaser or by which any
property or asset of Parent or Purchaser is bound or affected or (iii) result
in any breach of, or constitute a default (or 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, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation of Parent or Purchaser, except for any such
conflicts, violations, breaches, defaults or other occurrences that would not
prevent or materially delay the ability of Parent or Purchaser to carry out
its obligations under, and to consummate the transactions contemplated by,
this Agreement.
(b) The execution and delivery of this Agreement by each of
Parent and Purchaser do not, and the performance of this Agreement by each of
Parent and Purchaser shall not, require any consent, approval, authorization
or permit of, or filing with, or notification to, any Governmental Authority,
except (i) for applicable requirements, if any, of the Securities Act, the
Exchange Act, Blue Sky Laws and the premerger notification requirements of
the HSR Act, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would
not prevent or materially delay the ability of Parent or Purchaser to carry
out its obligations under, and to consummate the transactions contemplated
by, this Agreement.
ARTICLE VI
COVENANTS OF THE STOCKHOLDER
Section 6.01 No Disposition or Encumbrance of Shares. The
Stockholder hereby agrees that, except as contemplated by this Agreement, the
Stockholder shall not (i) sell, transfer, tender (except into the Offer),
pledge, assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to
(other than the Irrevocable Proxy), deposit into any voting trust, enter into
any voting agreement, or create or permit to exist any Liens of any nature
whatsoever (other than pursuant to this Agreement) with respect to, any of
the Shares (or agree or consent to, or offer to do, any of the foregoing), or
(ii) take any action that would make any representation or warranty of the
Stockholder herein untrue or incorrect in any material respect or have the
effect of preventing or disabling the Stockholder from performing the
Stockholder's obligations hereunder.
Section 6.02 No Solicitation of Transactions. The Stockholder
shall not, directly or indirectly, through any director, officer, affiliate,
employee, representative, agent or otherwise, (i) solicit, initiate, endorse,
accept or encourage the submission of any Takeover Proposal, or (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or otherwise cooperate in any way
with respect to, or participate in, assist, facilitate, endorse or encourage
any proposal that constitutes, or may reasonably be expected to lead to, a
Takeover Proposal; provided, however, that nothing herein shall prevent any
director, officer or stockholder of the Stockholder from acting in his or her
capacity as a director of the Company, or taking any action in such capacity
(including at the direction of the Company Board), but only in either such
case as and to the extent permitted by Section 8.5 of the Merger Agreement.
The Stockholder shall, and shall direct or cause its directors, officers,
affiliates, employees, representatives and agents to, immediately cease and
cause to be terminated any discussions or negotiations with any parties that
may be ongoing with respect to a Takeover Proposal.
Section 6.03 Further Action; Reasonable Best Efforts. Upon the
terms and subject to the conditions hereof, Parent, Purchaser and the
Stockholder shall use their reasonable best efforts to take, or cause to be
taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement.
Section 6.04 Information for Offer Documents and Proxy Statement;
Disclosure. The Stockholder covenants and agrees that none of the information
relating to the Stockholder and its affiliates for inclusion in the Schedule
14D-9, the Offer Documents or, if applicable, the Proxy Statement that has
been furnished to Parent by the Stockholder for inclusion in such documents
will, at (i) the time the Schedule 14D-9 or the Proxy Statement (or any
amendment or supplement thereto) is first filed with the SEC or mailed to
stockholders of the Company or (ii) the time of the Company Stockholders
Meeting (in the case of information included in the Proxy Statement), contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Stockholder agrees to permit Parent and Purchaser to publish
and disclose in the Offer Documents and, if applicable, the Proxy Statement
and any related filings under applicable securities Laws the Stockholder's
identity and ownership of Shares and the nature of its commitments,
arrangements and understandings under this Agreement and any other
information regarding the Stockholder as required by applicable Law.
ARTICLE VII
MISCELLANEOUS
Section 7.01 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 telecopy 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 7.01):
(a) if to the Stockholder:
[Insert Addresses]
(b) if to Parent or Purchaser:
c/o CEMEX
000 Xxxxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxx
and
CEMEX, S.A. de C.V.
Ave. Constitucion 444 Pte.
Xxxxxxxxx, XX, Xxxxxx 00000
Telecopy: 011-52818-328-3082
Attention: Xxxxxx Xxxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
and
Xxxxxx, Xxxxx & Xxxxxx
00 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxx
Section 7.02 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 the transactions contemplated hereby and by the Merger
Agreement are 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
such transactions be consummated as originally contemplated to the fullest
extent possible.
Section 7.03 Entire Agreement; Assignment. This Agreement
constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof. This Agreement shall not be assigned by operation of
law or otherwise, except that Parent and Purchaser may assign all or any of
their rights and obligations hereunder to any wholly owned subsidiary of
Parent, provided that no such assignment shall relieve Parent or Purchaser of
its obligations hereunder.
Section 7.04 Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and, except as set
forth in Section 7.10 hereof, nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.05 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at Law or in equity.
Section 7.06 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that State (other
than those provisions set forth herein that are required to be governed by
the Corporation Law of the Commonwealth of Puerto Rico). All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York state or federal court sitting in the
Borough of Manhattan of The City of New York. The parties hereto hereby (a)
submit to the exclusive jurisdiction of any state or federal court sitting in
the Borough of Manhattan of The City of New York for the purpose of any
action arising out of or relating to this Agreement brought by any party
hereto, and (b) irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property
is exempt or immune from attachment or execution, that the action is brought
in an inconvenient forum, that the venue of the action is improper, or that
this Agreement may not be enforced in or by any of the above-named courts.
Section 7.07 Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable Law any right it
may have to a trial by jury with respect to any litigation directly or
indirectly arising out of, under or in connection with this Agreement. Each
of the parties hereto (a) certifies that no representative, agent or attorney
of any other party has represented, expressly or otherwise, that such other
party would not, in the event of litigation, seek to enforce that foregoing
waiver and (b) acknowledges that it and the others hereto have been induced
to enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 7.07.
Section 7.08 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 7.09 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) 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.
Section 7.10 Amendment. This Agreement may not be amended except
by an instrument in writing signed by all the parties hereto. Notwithstanding
the foregoing, the provisions of this Agreement shall not be amended without
the prior written consent of the Company.
Section 7.11 Waiver. Any party to this Agreement 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
of another party contained herein or in any document delivered pursuant
hereto and (iii) waive compliance with any agreement of another party
contained herein. Any such extension or waiver shall be valid if set forth in
an instrument in writing signed by the party or parties to be bound thereby.
Section 7.12 Costs and Expenses of This Agreement and the Merger
Agreement. All costs and expenses of the parties hereto, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
Section 7.13 Adjustments.
(a) In the event (i) of any increase or decrease or other change
in the Shares by reason of stock dividend, stock split, recapitalizations,
combinations, exchanges of shares or the like or (ii) that a Stockholder
becomes the beneficial owner of any additional shares of Common Stock or
other securities of the Company, then (x) the terms of this Agreement shall
apply to the shares of capital stock and other securities of the Company held
by the Stockholder immediately following the effectiveness of the events
described in clause (i), or the Stockholder becoming the beneficial owner
thereof pursuant to clause (ii), and (y) the Purchase Price shall be
equitably adjusted to reflect the impact of any event described in clause (i).
(b) The Stockholder hereby agrees to promptly notify Parent and
Purchaser of the number of any new Shares or other securities acquired by the
Stockholder, if any, after the date hereof.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the day and year first above written.
CEMEX, S.A. DE C.V.
By: _____________________
Name:
Title:
TRICEM ACQUISITION, CORP.
By: _____________________
Name:
Title:
[Insert Shareholder Signature Block]
Schedule A
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Number of Shares of Common Stock
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