Exhibit (d)(2)
TENDER AND VOTING AGREEMENT
This TENDER AND VOTING AGREEMENT, dated as of March 16, 2002 (this
"Agreement"), among Harvest/AMI Holdings Inc., a Delaware corporation
("Parent"), Simon Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Parent ("Merger Sub"), and Xxxxxxx X. Xxxxxxxx ("Stockholder").
RECITALS:
A. Parent, Merger Sub and Associated Materials Incorporated, a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger, dated as of the date of this Agreement (as the same may be hereinafter
amended or supplemented, the "Merger Agreement"), pursuant to which Merger Sub
will make a tender offer to purchase, subject to the terms and conditions set
forth in the Merger Agreement, all of the outstanding shares of Common Stock
(the "Shares") of the Company and thereafter be merged with and into the Company
(the "Merger"). Except as otherwise defined in this Agreement, terms used in
this Agreement with initial capital letters have the respective meanings
ascribed to such terms in the Merger Agreement.
B. As of the date of this Agreement, Stockholder beneficially owns and is
entitled to dispose of, and/or to vote, the shares of Common Stock described on
Schedule A to this Agreement, as such Shares may be hereinafter adjusted by
stock dividend, stock split, recapitalization, combination, merger (other than
the Merger), consolidation, reorganization or other change in the capital
structure of the Company affecting the Shares (such shares, together with any
other shares of Common Stock the beneficial ownership of which is acquired by
Stockholder during the period from and including the date of this Agreement
through and including the date on which this Agreement is terminated pursuant to
Section 5.2, are collectively referred to in this Agreement as the "Subject
Shares").
C. As a condition and inducement to Parent and Merger Sub to enter into
the Merger Agreement, and in consideration therefor, Parent and Merger Sub have
requested that Stockholder agree, and Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement,
intending to be legally bound, hereby agree as follows:
I. TENDER OF SUBJECT SHARES
1.1 Agreement to Tender Shares. Stockholder hereby agrees to validly
tender (and not to withdraw) or cause to be validly tendered (and not
withdrawn), pursuant to and in accordance with the terms of the Offer and Rule
14d-2 under the Securities Exchange Act of 1934, all of the Subject Shares not
later than (i) the fifth business day after commencement of the Offer and (ii)
in the case of any Subject Shares acquired after the date of this Agreement,
whether upon the exercise of options, warrants or rights, the conversion or
exchange of convertible or exchangeable securities, or otherwise, the second
business day after acquisition thereof, and will cause the Subject Shares to
remain validly tendered and not withdrawn until the
Offer is terminated or has expired without Merger Sub purchasing any Shares
validly tendered in the Offer. Stockholder hereby acknowledges that Merger Sub's
obligation to accept for payment and pay for shares of Common Stock (including
the Subject Shares) pursuant to the Offer is subject to the terms and conditions
of the Offer set forth in the Merger Agreement.
II. VOTING OF SUBJECT SHARES
2.1 Agreement to Vote Subject Shares. From the date of this Agreement
until this Agreement is terminated pursuant to Section 5.2 (such period, the
"Voting Period"), at any meeting of the stockholders of the Company, however
called, to consider and vote upon the adoption of the Merger Agreement and at
any and all postponements and adjournments thereof, and in connection with any
action to be taken in respect of the adoption of the Merger Agreement by written
consent of stockholders of the Company, Stockholder will vote or cause to be
voted (including by written consent, if applicable) all of the Subject Shares
which Stockholder has the right to vote in favor of the Merger and the approval
of the terms of the Merger Agreement and in favor of each of the other
transactions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof that are considered and voted upon at
any such meeting or made the subject of any such written consent, as applicable.
At any meeting of the stockholders of the Company called to consider and vote on
any Adverse Proposal (as defined in this Section 2.1) and at any and all
postponements and adjournments thereof, and in connection with any action to be
taken in respect of any Adverse Proposal by written consent of stockholders of
the Company, Stockholder will vote or cause to be voted (including by written
consent, if applicable) all of the Subject Shares which he has the right to vote
against the adoption of such Adverse Proposal. For purposes of this Agreement,
the term "Adverse Proposal" means any (a) Acquisition Proposal, (b) transaction,
agreement or action that would reasonably be expected to result in a breach in
any material respect of any covenant, agreement, representation or warranty of
the Company under the Merger Agreement or of Stockholder under this Agreement,
or (c) the following actions (other than the Offer, the Merger and the other
transactions contemplated by the Merger Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company; (ii) a sale, lease or other transfer of a
material amount of assets of the Company and its subsidiary taken as a whole, or
a reorganization, recapitalization, dissolution or liquidation of the Company or
its subsidiary; (iii) (1) any change in the present capitalization of the
Company or any amendment of the Company's certificate of incorporation or bylaws
in effect on the date of this Agreement; (2) any other material change in the
Company's corporate structure or business; or (3) any other action that is
intended, or could reasonably be expected, to impede, materially interfere with,
materially delay, materially postpone, or materially and adversely affect the
Offer or the Merger and the other transactions contemplated by this Agreement
and the Merger Agreement or materially increase the likelihood that such
transactions will not be consummated. During the Voting Period, Stockholder
hereby agrees that it shall not enter into any agreement, letter of intent,
agreement in principle or understanding with any person that violates or
conflicts with this Agreement or the Merger Agreement.
2.2 Irrevocable Proxy. (a) Grant of Proxy. Subject to the first sentence
of Section 2.2(c), Stockholder hereby appoints Parent and any designee of
Parent, and each of them individually, Stockholder's proxy and attorney-in-fact,
with full power of substitution and resubstitution, to vote or act by written
consent during the Voting Period with respect to all of the
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Subject Shares which he has the right to vote (i) in accordance with Section 2.1
and (ii) to sign his name (as a stockholder) to any consent, certificate or
other document relating to the Company that the law of the State of Delaware may
permit or require in connection with any matter referred to in Section 2.1. This
proxy is given to secure the performance of the duties of Stockholder under this
Agreement and its existence will not be deemed to relieve Stockholder of his
obligations under Section 2.1. Stockholder affirms that this proxy is coupled
with an interest sufficient in law to support an irrevocable proxy and is
irrevocable until termination of this Agreement pursuant to Section 5.2,
whereupon such proxy and power of attorney shall automatically terminate without
further action. Stockholder will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy. For
Subject Shares as to which Stockholder is the beneficial but not the record
owner, Stockholder will use his reasonable best efforts to cause any record
owner of such Subject Shares to grant to Parent a proxy to the same effect as
that contained herein.
(b) Other Proxies Revoked. Subject to the first sentence of Section
2.2(c), Stockholder represents that any proxy heretofore given in respect of the
Subject Shares that conflicts with the terms of this Agreement is not
irrevocable, and hereby revokes any and all such proxies. Subject to the first
sentence of Section 2.2(c), Stockholder agrees that it will not grant any proxy
to any person that conflicts with the proxy granted by Stockholder pursuant to
Section 2.2(a), and any attempt to do so shall be void and of no force and
effect.
(c) Stockholders' Agreement. Parent and Merger Sub acknowledge that
certain of the Subject Shares are bound by the terms of the Stockholders'
Agreement, dated August 19, 1993, as amended, among The Prudential Insurance
Company of America, PCG Finance Company II, LLC, the Winspear Family Limited
Partnership and the Company (the "Stockholders' Agreement") whereby the Company
holds an irrevocable proxy on certain of the Subject Shares for the purpose of
electing and removing certain directors of the Company. Parent and Merger Sub
further acknowledge and agree that notwithstanding anything contained in this
Agreement to the contrary, all of the obligations and agreements of Stockholder
set forth in this Agreement are subject to the obligations of Stockholder under
the Stockholders' Agreement; provided, however, that such acknowledgment shall
not affect the (i) accuracy of the representations and warranties of Stockholder
in Section 3.1 or (ii) enforceability of the covenants and agreements of
Stockholder in this Agreement.
III. REPRESENTATIONS AND WARRANTIES
3.1 Certain Representations and Warranties of Stockholder. Stockholder
represents and warrants to Parent and Merger Sub, as of the date of this
Agreement and as of the Offer Completion Date, as follows:
(a) Ownership. Stockholder beneficially owns the number of shares of
Common Stock described on Schedule A to this Agreement in the manner described
on Schedule A, and has full and unrestricted power to dispose of and to vote
such Common Stock, except as described on Schedule A. Such shares of Common
Stock are now, and at all times during the term of this Agreement will be, held
in the manner described on Schedule A, free and clear of all liens, pledges,
hypothecations, restrictions, limitations and encumbrances whatsoever ("Liens")
and proxies, except for any Liens or proxies arising (i) hereunder and (ii)
under the Stockholders'
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Agreement (which exception, with respect to the Stockholders' Agreement, would
not reasonably be expected to have a material adverse effect on the transactions
contemplated by this Agreement and the Merger Agreement). The transfer by
Stockholder of the Subject Shares to Merger Sub or Parent pursuant to the Offer
and the payment therefor by Parent or Merger Sub as contemplated by the Merger
Agreement, will pass to and unconditionally vest in Merger Sub or Parent good
and valid title to the Subject Shares, free and clear of all Liens other than
restrictions arising (1) under applicable securities laws or (2) created by
Parent or Merger Sub. Except as described on Schedule A to this Agreement,
Stockholder (A) does not beneficially or of record own any securities of the
Company as of the date of this Agreement; (B) does not, directly or indirectly,
beneficially own or have any option, warrant or other right to acquire any
securities of the Company that are or may by their terms become entitled to vote
at any meeting of the stockholders of the Company or any securities that are
convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote at any meeting of
the stockholders of the Company, nor is Stockholder subject to any contract,
commitment, arrangement, understanding or relationship (whether or not legally
enforceable), other than this Agreement and the Stockholders' Agreement (which
exception, with respect to the Stockholders' Agreement, would not reasonably be
expected to have a material adverse effect on the transactions contemplated by
this Agreement and the Merger Agreement), that allows or obligates him to vote,
dispose of or acquire any securities of the Company; and (C) holds exclusive
power to vote the Subject Shares and has not granted a proxy to any other Person
to vote the Subject Shares, subject to the limitations set forth in this
Agreement and the Stockholders' Agreement (which exception, with respect to the
Stockholders' Agreement, would not reasonably be expected to have a material
adverse effect on the transactions contemplated by this Agreement and the Merger
Agreement).
(b) Power and Authority; Execution and Delivery. Stockholder has all
requisite capacity, power and authority to execute and deliver this Agreement
and, subject to Section 2.2(c), to consummate the transactions contemplated by
this Agreement. This Agreement has been duly executed and delivered by
Stockholder and, assuming that this Agreement constitutes a valid and binding
obligation of Parent and Merger Sub, constitutes a valid and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its terms,
subject to Section 2.2(c).
(c) No Conflicts. Subject to (i) Section 2.2(c), (ii) Schedule A and
(iii) compliance with the HSR Act and appropriate filings under applicable
securities laws, none of the execution and delivery of this Agreement, the
performance by Stockholder of his obligations hereunder or the consummation by
Stockholder of the transactions contemplated hereby shall conflict with, result
in a violation or breach of, or constitute a default (or an event that, with or
without notice or lapse of time or both, would result in a default) or give rise
to any right of termination, amendment, cancellation, notice or acceleration
under (1) any contract, commitment, agreement, note, bond, mortgage, indenture,
license, understanding, arrangement, instrument, obligation or restriction of
any kind to which Stockholder is a party or by which Stockholder and his Subject
Shares may be bound, (2) any injunction, judgment, writ, decree, order or ruling
applicable to Stockholder or Stockholder's Subject Shares or (3) any law,
statute, rule or regulation applicable to Stockholder; except, in each case, for
conflicts, violations, breaches or defaults that would not (A) materially impair
the ability of Stockholder to perform
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his obligations under this Agreement or (B) prevent or materially delay the
consummation of any of the transactions contemplated by this Agreement.
(d) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
Stockholder in his capacity as a stockholder of the Company, it being understood
that the Company has retained the Financial Advisor in connection with the
transactions contemplated by the Merger Agreement.
(e) Reliance by Parent. Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance upon the execution
and delivery of this Agreement by Stockholder.
3.2 Representations and Warranties of Parent and Merger Sub. Each of
Parent and Merger Sub hereby represents and warrants, jointly and severally, to
Stockholder, as of the date of this Agreement and as of the Offer Completion
Date and the Closing Date, that:
(a) Organization; Authority. Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each of Parent and Merger Sub
has the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement, and
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement.
(b) Execution and Delivery. This Agreement has been duly executed
and delivered by Parent and Merger Sub and, assuming that this Agreement
constitutes a valid and binding obligation of Stockholder, constitutes a valid
and binding obligation of each of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with its terms. (c) No Conflicts. Subject to
compliance with the HSR Act and appropriate filings under applicable securities
laws, none of the execution and delivery of this Agreement, the performance by
Parent or Merger Sub of their respective obligations under this Agreement or the
consummation by Parent or Merger Sub of the transactions contemplated by this
Agreement and the Merger Agreement shall conflict with, result in a violation or
breach of, or constitute a default (or an event that, with or without notice or
lapse of time or both, would result in a default) or give rise to any right of
termination, amendment, cancellation, or acceleration under, (i) Parent's or
Merger Sub's certificate of incorporation, bylaws or similar constituent
documents, (ii) any note, bond, mortgage, indenture, contract, commitment,
agreement, understanding, arrangement or instrument, obligation or restriction
of any kind to which Parent or Merger Sub is a party or by which Parent or
Merger Sub is bound, (iii) any injunction, judgment, writ, decree, order or
ruling applicable to Parent or Merger Sub or any of their respective properties
or assets, or (iv) any law, statute, rule or regulation applicable to Parent or
Merger Sub; except, in each case, for conflicts, violations, breaches or
defaults that would not (1) materially impair the ability of Parent or Merger
Sub to perform its obligations under this Agreement or (2) prevent or materially
delay the consummation of any of the transactions contemplated by this
Agreement.
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IV. CERTAIN COVENANTS OF STOCKHOLDER
4.1 Restriction on Transfer of Subject Shares, Proxies and
Noninterference. From the date of this Agreement and until this Agreement is
terminated pursuant to Section 5.2, Stockholder will not, directly or
indirectly: (a) except (i) pursuant to the terms of this Agreement, (ii) with
respect to encumbrances, encumbrances set forth in or arising under the
Stockholders' Agreement which would not reasonably be expected to have a
material adverse effect on the transactions contemplated by this Agreement and
the Merger Agreement, and (iii) pursuant to transactions contemplated by the
Merger Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Subject Shares, (b) except pursuant to the terms of this
Agreement or the Stockholders' Agreement (which, with respect to the
Stockholders' Agreement, would not reasonably be expected to have a material
adverse effect on the transactions contemplated by this Agreement and the Merger
Agreement), grant any proxies or powers of attorney in respect of the Subject
Shares, (c) deposit any Subject Shares into a voting trust or enter into a
voting agreement with respect to any Subject Shares, and (d) take any action
that would reasonably be expected to make any of his representations or
warranties contained in this Agreement untrue or incorrect in any material
respect or have the effect of preventing or materially delaying such Stockholder
from performing his obligations under this Agreement or preventing or materially
delaying the consummation of any of the transactions contemplated by this
Agreement.
4.2 Adjustments. Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any additional shares of
Common Stock or other securities of the Company acquired by Stockholder, if any,
after the date of this Agreement, and to modify or update Schedule A as a result
thereof.
4.3 No Solicitation. Stockholder shall, and shall use his reasonable best
efforts to cause his personal representatives, consultants, investment bankers,
attorneys, accountants and other agents (collectively, "Stockholder
Representatives") immediately to, cease any discussions or negotiations with any
Third Party that may be ongoing with respect to any Acquisition Proposal.
Stockholder shall not take, and shall use his reasonable best efforts to cause
his Stockholder Representatives not to take, any action (a) to solicit,
initiate, facilitate or knowingly encourage, directly or indirectly, the making
or submission of any Acquisition Proposal, (b) to enter into any agreement,
arrangement or understanding with respect to any Acquisition Proposal, or to
agree to approve or endorse any Acquisition Proposal or enter into any
agreement, arrangement or understanding that would require the Company to
abandon, terminate or fail to consummate the Merger or any other transaction
contemplated by the Merger Agreement, (c) to initiate or participate in any way
in any discussions or negotiations with, or furnish or disclose any nonpublic
information of the Company to, any Third Party in connection with any
Acquisition Proposal, or (d) to knowingly facilitate the making or submission of
any Acquisition Proposal. In furtherance of and without limiting the foregoing,
Stockholder acknowledges and agrees that he shall not (in his individual
capacity and not in his capacity as a director and officer of the Company),
under any circumstances, enter into discussions with, request clarification
from, or furnish nonpublic information to any Third Party that makes an
Acquisition Proposal. Notwithstanding the foregoing, Stockholder (in his
capacity as a director,
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officer or employee of the Company) may take any such action otherwise
prohibited by this Section 4.3 under the circumstances set forth in Section
6.5(b) of the Merger Agreement permitting the Company to take such actions.
Notwithstanding any provision of this Section 4.3 to the contrary, (i)
Stockholder, in his capacity as a member of the Board of Directors of the
Company, may take actions in such capacity to the extent permitted by Section
6.5 of the Merger Agreement, and (ii) Stockholder, in his capacity as an officer
of the Company, may take actions in such capacity to the extent directed to do
so by the Board of Directors of the Company in compliance with Section 6.5 of
the Merger Agreement.
4.4 Waiver of Appraisal Rights. Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that Stockholder may have.
V. MISCELLANEOUS
5.1 Fees and Expenses. Each party hereto will pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
5.2 Amendment; Termination. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed on behalf of Parent and Stockholder. Notwithstanding the
foregoing, this Agreement will terminate on the earliest to occur of (a) the
consummation of the purchase of all Subject Shares pursuant to the Offer, (b)
the Effective Time and (c) the date the Merger Agreement is terminated in
accordance with its terms. This Agreement may be earlier terminated by the
mutual consent of Parent and Stockholder. Except as set forth below, in the
event of termination of this Agreement pursuant to this Section 5.2, this
Agreement will become null and void and of no effect with no liability on the
part of any party hereto and all proxies granted pursuant to Section 2.2(a) or
otherwise pursuant to this Agreement will, without further action, be
automatically revoked. Notwithstanding anything to the contrary contained in
this Agreement, if this Agreement is terminated for any reason, this Article V
will survive any termination of this Agreement.
5.3 Extension; Waiver. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights or remedies under this Agreement or otherwise available in respect
of this Agreement at law or equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, shall not constitute a waiver by
such party of its right to exercise any such right or remedy under this
Agreement. Any waiver by any party of a breach of any provision of this
Agreement will not operate as or be construed as a waiver of any other breach of
such provision or of any breach of any other provision of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
or one or more sections of this Agreement will not be considered a waiver or
deprive that party of a right thereafter to insist upon strict adherence to that
term or any other term of this Agreement.
5.4 Entire Agreement; No Third-Party Beneficiaries. This Agreement and the
Merger Agreement constitute the entire agreement among the parties hereto with
respect to the subject
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matter of this Agreement, and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to such matters. This
Agreement is not intended to confer any rights or remedies upon any person other
than the parties to this Agreement.
5.5 Governing Law. This Agreement will 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 conflict of laws thereof.
5.6 Notices. Any notice, requests, demands, waivers and other
communications required to be given hereunder will be sufficient if in writing,
and sent by facsimile transmission and by courier service (with proof of
service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
If to Parent or Merger Sub:
c/o Harvest Partners
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Stockholder:
c/o Associated Materials Incorporated
0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. X'Xxxxxx
Telecopy: (000) 000-0000
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or to such other address as any party specifies by written notice, such notice
being deemed to have been received as of the date of delivery, except for a
notice of a change of address, which shall be effective only upon receipt
thereof.
5.7 Assignment. Neither this Agreement nor any of the rights, interests,
or obligations under this Agreement may be assigned or delegated, in whole or in
part, by Stockholder without the prior written consent of Parent or by Parent or
Merger Sub without the prior written consent of Stockholder, and any such
assignment or delegation that is not consented to will be null and void. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the parties and their respective successors
and assigns.
5.8 Further Assurances. Stockholder will execute and deliver such other
documents and instruments and take such further actions as may be necessary or
as may be reasonably requested by Parent in order to ensure that Parent and
Merger Sub receive the full benefit of this Agreement.
5.9 Publicity. (a) Parent, Merger Sub and Stockholder will consult with
each other party before issuing any press release or otherwise making any public
statements or SEC filings with respect to this Agreement or the other
transactions contemplated by this Agreement and will not issue any such press
release or make any such public statement before such consultation, except as
may be required by Applicable Law or applicable securities exchange or
securities association rules.
(b) Stockholder hereby permits Parent and Merger Sub to publish and
disclose in the Offer Documents and, if approval of the holders of Common Stock
is required under Applicable Law, in the Company Proxy Statement (including all
documents and schedules filed with the SEC) his identity and ownership of Shares
and the nature of his commitments, arrangements and understandings pursuant to
this Agreement.
5.10 Enforcement. Irreparable damage may occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to seek an injunction to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement, with this being
the sole and exclusive remedy to which Parent and Merger Sub are entitled at law
or in equity for a breach of this Agreement. In no event shall either Parent or
Merger Sub be entitled to any monetary damages for breach of this Agreement.
5.11 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such a manner as to be
effective and valid under Applicable Law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any Applicable Law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
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5.12 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
5.13 Headings. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
5.14 Sections. When a reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement unless otherwise
indicated.
5.15 Remedies Not Exclusive. Except as otherwise provided in Section 5.10,
all rights, powers and remedies provided under this Agreement or otherwise
available in respect of this Agreement at law or in equity will be cumulative
and not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
5.16 Jurisdiction; Consent to Service of Process. Each of the parties
hereto (a) hereby irrevocably and unconditionally consents to submit to the
personal jurisdiction of the courts of the State of Delaware and of the United
States of America located in the State of Delaware (the "Delaware Courts") in
the event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) shall not object to or attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, and (c) shall not bring any action relating to this Agreement or any
of the transactions contemplated by this Agreement in any other court, other
than to enforce the judgment of the Delaware Courts.
5.17 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.18 Capacity. Stockholder is signing this Agreement solely in
Stockholder's capacity as the beneficial owner of Subject Shares and not in his
capacity as a director, officer or employee of the Company, and nothing
contained in this Agreement to the contrary shall limit or otherwise affect any
act or omission taken by Stockholder in his capacity as a director, officer or
employee of the Company and no act or omission in such capacity as a director,
officer or employee of the Company shall, or shall be deemed to, constitute a
breach of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed as of the day and year first written above.
PARENT:
HARVEST/AMI HOLDINGS INC.
By: /s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: President
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MERGER SUB:
SIMON ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: President
----------------------------------
STOCKHOLDER:
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
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SCHEDULE A
RECORD AND BENEFICIAL OWNERSHIP
MANNER HELD DISPOSITIVE POWER VOTING POWER
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Xxxxxxx X. Xxxxxxxx(1) 64,368 64,368
Xxxxxxx X. Xxxxxxxx, as trustee of
the MMWRT(2) 21,709 751,458
Xxxxxxx X. Xxxxxxxx, as trustee of
WFLPRT, the general partner of WFLP(3) 2,911,165 864,209
Xxxxxxx X. Xxxxxxxx, as the general
partner of WFI(4) 100,000 990
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Total 3,097,242 1,681,025
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1. Stockholder has sole voting and dispositive power with respect to these
64,368 shares; however, 20,000 of these shares are held in a bank
custodial account, which account has been pledged to secure a loan.
2. Stockholder is the trustee of the Xxxxxx Xxxxxxx Winspear Revocable Trust
("MMWRT"). MMWRT is the record and beneficial owner of 21,709 shares of
Common Stock. MMWRT is a partner of The Winspear Family Limited
Partnership ("WFLP"). MMWRT is also a partner of Winspear Family
Investments, Ltd. ("WFI"). The partnership agreements governing WFLP and
WFI each provide that the partners of WFLP and WFI have pass-through
voting rights with respect to the shares of Common Stock held by WFLP and
WFI. In his capacity as trustee of MMWRT, Stockholder (i) has the power to
vote and dispose of 21,709 shares of Common Stock held by MMWRT, (ii) the
power to vote 728,749 shares of Common Stock held by WFLP and (iii) the
power to vote 1,000 shares of Common Stock held by WFI.
3. Stockholder is the trustee of The Winspear FLP Revocable Trust ("WFLPRT"),
the general partner of the WFLP. WFLP holds 2,911,165 shares of Common
Stock. In his capacity as trustee of WFLPRT, Stockholder (i) has the power
to vote 77,024 shares of Common Stock held by WFLP and (ii) has the power
to dispose of the 2,911,165 shares of Common Stock held by WFLP.
Stockholder is also a limited partner of WFLP and pursuant to the
pass-through voting rights described in note 2 above, Stockholder has the
power to vote 787,185 shares of Common Stock held by WFLP.
4. Stockholder is the general partner of WFI. In his capacity as general
partner of WFI, Stockholder (i) has the power to vote 990 shares of Common
Stock held by WFI and (ii) has the power to dispose of the 100,000 shares
of Common Stock held by WFI.
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