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EXHIBIT (c)(5)
STOCK OPTION AGREEMENT
Stock Option Agreement dated as of September 13, 1995, by and
among Xxxxxx Xxxxxx, Inc., a Tennessee corporation ("Parent"), Xxxxxx
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser"), and XXXXX X. XXXXXXXX ("Stockholder").
RECITALS
A. Concurrently herewith, Parent, Purchaser and
The X.X. Xxxxxx Company, a Delaware corporation ("X.X. Xxxxxx"), are entering
into a Tender Offer and Merger Agreement of even date herewith (the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), which contemplates, among other
things, that Purchaser will commence a tender offer to purchase all outstanding
shares of X.X. Xxxxxx Common at a price of $9.00 per share (the "Offer").
Subject to the terms and conditions of the Merger Agreement, the Offer will be
followed by a merger (the "Merger") of Purchaser with and into X.X. Xxxxxx.
B. As of the date hereof, Stockholder owns
20,723 shares of the outstanding X.X. Xxxxxx Common (the "Shares") and desires
to (i) grant to Purchaser the option to acquire all of such Shares at a per
share price equal to the greatest of (x) $9.00, (y) the price per share of X.X.
Xxxxxx Common paid for X.X. Xxxxxx purchased in the Offer or (z) the price paid
in any transaction in which any person or entity shall become the beneficial
owner of 50% or more of the outstanding shares of X.X. Xxxxxx Common; (ii)
grant to Purchaser an irrevocable proxy covering the Shares; (iii) enter into
an agreement whereby the Stockholder agrees to tender and not withdraw the
Shares in the Offer; and (iv) agree not to dispose of the Shares or any
interest therein other than in accordance with this Agreement.
C. Parent and Purchaser will enter into the
Merger Agreement in part in reliance on Stockholder's representations,
warranties and agreements under this Agreement.
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AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. THE CONDITIONAL PURCHASE OPTION
1.1. GRANT OF OPTION. Stockholder hereby grants
to Purchaser an irrevocable option to purchase the Shares at a per share price
equal to the greatest of (i) $9.00, (ii) the price per share of X.X. Xxxxxx
Common paid for X.X. Xxxxxx Common purchased in the Offer or (iii) the price
paid in any transaction in which any person or entity shall become the
beneficial owner of 50% or more of the X.X. Xxxxxx Common and on the terms and
subject to the conditions set forth herein (the "Option").
1.2. EXERCISE OF OPTION.
(a) The Option may be exercised by
Purchaser (or its designee, which designee must be Parent or a direct or
indirect wholly owned subsidiary of Parent), in whole or in part, at any time,
or from time to time, during the period beginning on the final business day
before the expiration date of the Offer and ending on the Expiration Date. As
used herein, the term "Expiration Date" means the first to occur of any of the
following dates:
(x) consummation of the Offer; or (y) the termination of the
Merger Agreement pursuant to its terms (unless Purchaser has
theretofore sent the written notice specified in Section
1.2(b)).
(b) If Purchaser wishes to exercise the
Option (the "Option Purchase"), Purchaser shall send a written notice to
Stockholder of its intention to exercise the Option, specifying the number of
Shares to be purchased, whether Purchaser and/or a designee of Purchaser will
be purchasing the Shares and the place, and, if then known, time and date of
the closing of such purchase (the "Closing Date" or the "Closing"), which date
shall not be less than two business days nor more than ten business days from
the date on which such notice is delivered; provided, that the Closing shall be
held only if (i) such purchase would not otherwise violate or cause the
violation of, any applicable law or regulations (including, the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations thereunder, or the rules of the New York Stock
Exchange or American Stock Exchange, (ii) no statute, rule, regulation, decree,
order or injunction shall have been promulgated, enacted, entered into or
enforced by any governmental agency or authority or court which prohibits
delivery of the Shares, whether
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temporary, preliminary or permanent (provided, however, that the parties hereto
shall use their reasonable efforts to have any such order, decree or injunction
vacated or reversed) and (iii) there has been no material breach of the Merger
Agreement by the Purchaser or Parent. In the event the Closing is delayed as a
result of clause (i) or (ii) above, the Closing Date shall be within five
business days following the cessation of such violation, statute, rule,
regulation, decree, order or injunction, as the case may be but not later than
the Expiration Date.
If within one year following an exercise of the Option, there
occurs a transaction in which any person or entity (other than Purchaser,
Parent or an affiliate of either of them) becomes the beneficial owner of 50%
or more of the X.X. Xxxxxx Common and in which the consideration paid to
Purchaser or Parent exceeds the exercise price of the Option, the Purchaser
will, promptly following consummation of such transaction, pay to the
Stockholder an amount equal to the excess of the consideration paid in such
transaction per share of X.X. Xxxxxx Common over the exercise price per share,
multiplied by the number of shares acquired upon exercise of the Option. The
provisions of this paragraph shall terminate at such time as Purchaser, Parent
or any affiliate of either of them owns 100% of the X.X. Xxxxxx Common then
outstanding.
Notwithstanding the foregoing, if a transaction is proposed in
which any person or entity (other than Purchaser, Parent or an affiliate of
either of them) would become the beneficial owner of 50% or more of the
outstanding X.X. Xxxxxx Common and if the exercise price per share under the
Option shall be the amount proposed to be paid in such transaction, any notice
given pursuant to this Section 1.2(b) shall be given to Stockholder not less
than five business days prior to the termination of Stockholder's rights to
participate in such transaction. In the event notice of exercise is given by
Purchaser in accordance with the preceding sentence, the obligation of
Purchaser to purchase the Shares described in such notice shall be subject to
the condition that the transaction in which the person or entity would become
the beneficial owner of 50% or more of the X.X. Xxxxxx Common shall have been
consummated.
2. AGREEMENT TO TENDER SHARES. Stockholder agrees to accept the
Offer, to tender the Shares into the Offer and not to withdraw such Shares
prior to consummation of the Offer or withdrawal of the Offer by Purchaser,
unless a transaction is proposed in which any person or entity (other than
Purchaser or Parent) would become the beneficial owner of 50% or more of the
outstanding X.X. Xxxxxx Common and Purchaser shall not have exercised the
Option.
3. IRREVOCABLE PROXY. Stockholder hereby irrevocably appoints S.
Xxxxxx Xxxxx and Xxx X. Xxxxxx, or either of them, as its attorney and proxy,
with full power of substitution, to vote or to express written consent or
dissent in such manner as such attorney and proxy or its substitute shall, in
its sole discretion, deem proper, and otherwise act (including
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pursuant to any corporate action in writing without a meeting) with respect to
all of the Shares which it is entitled to vote at any meeting of stockholders
(whether annual or special and whether or not an adjourned meeting) of X.X.
Xxxxxx, or pursuant to written action taken in lieu of any such meeting or
otherwise; provided, however, that Stockholder grants a proxy hereunder only
with respect to the following matters (the "Designated Matters"): (i) votes or
consents with respect to the Merger; (ii) votes or consents with respect to any
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of X.X. Xxxxxx
under the Merger Agreement; (iii) votes or consents with respect to any action
or agreement that would impede, interfere with, delay, postpone or attempt to
discourage the Offer or the Merger, including, but not limited to, (a) any
extraordinary corporate transaction (other than the Offer and the Merger), such
as a merger, other business combination, reorganization or liquidation
involving X.X. Xxxxxx, (b) a sale or transfer of a material amount of assets of
X.X. Xxxxxx or any of its subsidiaries, (c) any change in the board of
directors of X.X. Xxxxxx, except as otherwise agreed to in writing by Parent,
or (d) any material change in the present capitalization of X.X. Xxxxxx; and
(iv) votes or consents relating to any other material change in the corporate
structure or business of X.X. Xxxxxx. This proxy is irrevocable, is coupled
with an interest sufficient in law to support an irrevocable proxy and is
granted in consideration of and as an inducement to cause the Parent and
Purchaser to enter into the transactions contemplated by this Agreement and the
Merger Agreement. This proxy shall revoke any other proxy granted by
Stockholder at any time with respect to the Shares and no subsequent proxies
will be given with respect thereto by Stockholder. In addition, if subsequent
to the date hereof Stockholder is entitled to vote the Shares for any purpose,
it shall take all actions necessary to vote the Shares pursuant to instructions
received from Purchaser; provided, however, that the provisions of this
sentence shall only apply to the Designated Matters. It is expressly
understood and acknowledged by the parties hereto that nothing contained herein
is intended to restrict the Stockholder (if the Stockholder is also a director
of X.X. Xxxxxx) from voting on any matter, or otherwise from acting, in the
Stockholder's capacity as a director of X.X. Xxxxxx with respect to any matter,
including but not limited to, the general management of over-all operation of
X.X. Xxxxxx.
4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder represents
and warrants to Parent and Purchaser as follows:
4.1. OWNERSHIP OF SHARES. On the date hereof, the
Shares are all of the shares of X.X. Xxxxxx Common currently beneficially
owned by the Stockholder. (1) Stockholder does not have any rights to acquire
any additional shares of X.X. Xxxxxx Common from X.X. Xxxxxx, (2) Stockholder
currently has, and at the exercise of the Option and the sale of the Shares to
Purchaser in accordance with this Agreement will have, good, valid and
marketable title to the Shares, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase and claims of every kind
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(other than the encumbrances created by this Agreement and other than
restrictions on transfer under applicable Federal and State securities laws and
(3) the sale of Shares to Purchaser hereunder will transfer to Purchaser good,
valid and marketable title to said Shares included in such transaction, free of
all liens, encumbrances, restrictions and claims of every kind other than
restrictions on transfer under applicable Federal and State securities laws.
4.2. POWER; BINDING AGREEMENT. Stockholder has
the full legal right, power and authority to enter into and perform all of
Stockholder's obligations under this Agreement. The execution and delivery of
this Agreement by Stockholder will not violate any other agreement to which
Stockholder is a party including, without limitation, any voting agreement,
stockholders agreement, voting trust or proxy. This Agreement has been duly
executed and delivered by Stockholder and constitutes a legal, valid and
binding agreement of Stockholder, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws, now or hereafter in effect
affecting creditors' rights and remedies generally or general principles of
equity. Neither the execution or delivery of this Agreement nor the
consummation by Stockholder of the transactions contemplated hereby will (i)
require any consent or approval of or filing by Stockholder with any
governmental or other regulatory body except for filings on Schedule 13D or
Schedule 13G and a Form 4 under the Exchange Act, or (ii) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which Stockholder is a party or by which Stockholder is bound.
4.3. FINDER'S FEE. No person is, or will be,
entitled to any commission or finder's fees from Stockholder in connection with
this Agreement or the transactions contemplated hereby.
5. REPRESENTATION AND WARRANTIES OF PARENT AND PURCHASER. Each of Parent
and Purchaser represents and warrants to Stockholder as follows:
5.1. POWERS; BINDING AGREEMENT. Each of Parent
and Purchaser has full legal right, power and authority to enter into and
perform all of its obligations under this Agreement. The execution and
delivery of this Agreement by Parent and Purchaser has been authorized by all
necessary corporate action on the part of Parent and Purchaser and will not
violate any other agreement to which Parent and Purchaser is a party. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws, now or hereafter in effect affecting creditors' rights and remedies
generally or general principles of equity. Neither the execution or delivery
of this Agreement nor the consummation by Parent or
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Purchaser of the transactions contemplated hereby will (i) require any consent
or approval of or filing by Parent or Purchaser with any governmental or other
regulatory body except for (x) the filings required under the HSR Act and (y)
filings on Schedule 13D under the Exchange Act, or (ii) constitute a violation
of, conflict with or constitute a default under, any contract, commitment,
agreement, understanding, arrangement or other restriction of any kind to which
Parent or Purchaser is a party or by which Parent or Purchaser is bound.
5.2. FINDER'S FEES. Other than the fee payable by
Parent as disclosed in the Merger Agreement, no person is, or will be, entitled
to any commission or finder's fees from Parent or Purchaser in connection with
this Agreement or the transactions contemplated hereby.
5.3. NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
The purchase of Shares from the Stockholder pursuant to this Agreement is for
the account of the Purchaser for the purpose of investment and not with a view
to or for sale in connection with any distribution thereof within the meaning
of the Securities Act and the rules and regulations promulgated thereunder.
6. FURTHER ASSURANCES. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate the transactions contemplated by this Agreement,
including, without limitation, to vest in Purchaser good title to any Shares
purchased hereunder.
7. CERTAIN COVENANTS OF THE STOCKHOLDER. Except in accordance with the
provisions of this Agreement, Stockholder agrees, while this Agreement is in
effect, not to, directly or indirectly:
(a) sell, transfer, pledge, encumber,
assign or otherwise dispose of or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of the Shares other than
transfers to family members, trusts for the benefit of the Stockholder or
family members or in connection with estate planning but only if the transferee
of such Shares agrees in writing to be bound by the provisions of this
Agreement with respect to such Shares;
(b) grant any proxies, deposit any
Shares into a voting trust or enter into a voting agreement with respect to any
Shares; or
(c) except as otherwise permitted to
X.X. Xxxxxx and the directors of X.X. Xxxxxx pursuant to Section 6.3(a) of the
Merger Agreement and in circumstances where the Stockholder or its
representative is acting solely in his or her
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capacity as a director of X.X. Xxxxxx, take any action to encourage, solicit,
initiate, or participate in any way in discussions or negotiations with, or
furnish any information to, or afford any access to the properties, books or
records of the Company or any of its subsidiaries to, or otherwise assist,
facilitate or encourage, any person or entity (other than Parent and Purchaser,
or officers, directors, representatives, agents, affiliates or associates) in
connection with any possible or proposed merger, consolidation, business
combination, liquidation, reorganization, sale or other disposition of assets,
sale of shares of capital stock or similar transactions involving the Company
or any division of the Company.
8. CERTAIN COVENANTS OF PURCHASER AND PARENT.
8.1. OFFER AND MERGER. Parent and Purchaser agree
to make the Offer, and to follow such Offer with the Merger pursuant to the
terms, and subject to the conditions, contained in the Merger Agreement.
8.2. HSR ACT FILINGS. Parent and Purchaser agree
to make in a timely manner any filings required to be made by them under the
HSR Act in connection with the transactions contemplated by this Agreement and
the Merger Agreement.
9. TERMINATION. This Agreement shall terminate on the earliest of:
(a) the date on which Parent, Purchaser
and Stockholder mutually consent to terminate this Agreement in writing;
(b) following the successful
consummation of the Offer; and
(c) prior to the successful consummation
of the Offer, the termination of the Merger Agreement pursuant to its terms.
10. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall
be deemed duly given when received by delivery in person, by telecopy, telex or
telegram or by certified mail, postage prepaid, or by an overnight courier
service, addressed as follows:
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If to Purchaser or Parent: If to Stockholder:
Xxx X. Xxxxxx -------------------------------
Executive Vice President -------------------------------
Xxxxxx Xxxxxx, Inc. -------------------------------
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: with a copy to:
Xxxxx X. Xxxxx, III -------------------------------
Bass, Xxxxx & Xxxx -------------------------------
0000 Xxxxx Xxxxxxxx Xxxxxx -------------------------------
Xxxxxxxxx, XX 00000 -------------------------------
11. 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 party
against whom such modification, amendment, alteration or supplement is sought
to be enforced.
12. ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns, 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, except that Purchaser may assign any or
all of its rights and obligations hereunder to Parent or any direct or indirect
wholly owned subsidiary of Parent without the consent of Stockholder, but no
such transfer shall relieve Purchaser of its obligations under this Agreement
if such subsidiary does not perform the obligations of Purchaser hereunder.
13. GOVERNING LAW. This Agreement, and all matters relating hereto,
shall be governed by, and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of laws thereof.
14. 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 may elect to
institute and prosecute proceedings in any court of competent
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jurisdiction to enforce specific performance or to enjoin the continuing breach
of such provision, as well as to obtain damages for breach of this Agreement
and such aggrieved party may take any such actions without the necessity of
posting a bond. 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.
15. COUNTERPARTS. This Agreement may be executed 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.
16. 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 provisions of
this Agreement are so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
17. 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.
18. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first above written.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
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Title: EVP & Secretary
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XXXXXX ACQUISITION CORP.
By: /s/ S. Xxxxxx Xxxxx
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Title: /s/ President
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/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
STOCKHOLDER
