Exhibit 2.2
SUPPORT AGREEMENT
-----------------
THIS SUPPORT AGREEMENT (this "Agreement"), is dated as of March 26, 2004,
by and between AAH Holdings Corporation, a Delaware corporation ("Purchaser"),
and [________] (the "Stockholder").
WHEREAS, concurrently herewith, Purchaser, AAH Acquisition Corporation, a
Delaware corporation and wholly-owned subsidiary of Purchaser, and Amscan
Holdings, Inc., a Delaware corporation (the "Company"), are entering into the
Agreement and Plan of Merger, dated as of the date hereof (as amended from time
to time, the "Merger Agreement") (capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Merger
Agreement);
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote and dispose of the number of Voting Shares (as defined
herein), and in the manner reflected, on Schedule I hereto (the "Owned Shares");
WHEREAS, as a condition to Purchaser's willingness to enter into and
perform its obligations under the Merger Agreement, Purchaser has required that
the Stockholder agree, and the Stockholder has agreed, to (i) vote all of the
Owned Shares, together with any shares of common stock, par value $0.10 per
share, of the Company (the "Company Common Stock"), shares of Series A
Redeemable Convertible Company Preferred Stock, par value $0.10 per share, of
the Company (the "Company Preferred Stock" and, together with the Company Common
Stock, the "Company Stock")) acquired after the date of this Agreement, whether
upon the exercise of Company Options, Company Warrants or any other conversion
of convertible securities or otherwise, and any other voting securities of the
Company (whether acquired heretofore or hereafter or acquired through conversion
or exercise of outstanding securities) that are beneficially owned by the
Stockholder or over which the Stockholder has, directly or indirectly, the right
to vote (collectively, the "Voting Shares"), in favor of adopting the Merger
Agreement, (ii) waive any rights of appraisal that the Stockholder may have
under Section 262 of the DGCL in connection with the Merger and (iii) take the
other actions described herein; and
WHEREAS, the Stockholder desires to express its support for the Merger and
the other transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of and reliance upon the premises and the
representations, warranties, covenants and agreements contained in this
Agreement and the Merger Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
-1-
1. Support Obligations of Stockholder.
1.1 Agreement to Vote. The Stockholder shall at any meeting of the
stockholders of the Company (or action by written consent in lieu thereof),
however called, or any adjournment or postponement thereof, be present (in
person or by proxy) and vote (or cause to be voted), or execute a written
consent in respect of, all of its Voting Shares (i) in favor of adopting
the Merger Agreement and (ii) against any action, agreement, transaction or
proposal which could prevent, impede or delay the consummation of the
Merger or the other transactions contemplated by the Merger Agreement.
1.2 Irrevocable Proxy. Solely in respect of the matters described in
Section 1.1, the Stockholder hereby irrevocably appoints Purchaser as its
proxy (which proxy is irrevocable and which appointment is coupled with an
interest, including for purposes of Section 212 of the Delaware General
Corporation Law) to vote all Voting Shares solely on the matters described
in Section 1.1, and in accordance therewith. The Stockholder shall execute
any further agreement or form reasonably necessary or appropriate to
confirm and effectuate the grant of the proxy contained herein. Such proxy
shall automatically terminate upon the valid termination of this Agreement.
The parties acknowledge and agree that, to extent Purchaser acts within the
rights granted under Section 1.1 and Section 1.2 hereof, neither Purchaser,
nor Purchaser's successors, assigns, subsidiaries, divisions, employees,
officers, directors, shareholders, agents and affiliates shall owe any duty
to, whether in law or otherwise, or incur any liability of any kind
whatsoever, including without limitation, with respect to any and all
claims, losses, demands, causes of action, costs, expenses (including
reasonable attorney's fees) and compensation of any kind or nature
whatsoever to the Stockholder in connection with or as a result of any
voting (or refrain from voting) by Purchaser of the Voting Shares which are
subject to the irrevocable proxy hereby granted to Purchaser at any annual,
special or other meeting or action or the execution of any consent of the
stockholders of the Company. The parties acknowledge that, pursuant to the
authority hereby granted under the irrevocable proxy, Purchaser may vote
the Voting Shares as contemplated by Section 1.1 in furtherance of its own
interests, and Purchaser is not acting as a fiduciary for the Stockholder.
1.3 Treatment of Special Securities. To the extent that the
Stockholder owns any Company Options, Company Warrants or Company
Restricted Stock (individually, a "Special Security") as of the date hereof
or as of the Effective Time, the Stockholder hereby agrees (i) to the
treatment of any such Special Security in the Merger as contemplated by
Section 2.9 or Section 2.10 of the Merger Agreement, as applicable, and
(ii) that the terms and conditions of the Merger Agreement shall control
and supercede any agreement or understanding relating to any such Special
Security to the contrary.
1.4 Waiver of Appraisal Rights. Notwithstanding any provision in the
Merger Agreement to contrary, the Stockholder hereby waives rights of
appraisal, if any, that the Stockholder may have under Section 262 of the
DGCL in connection with the Merger and the transactions contemplated by the
Merger Agreement.
-2-
2. Representations and Warranties of Stockholder. The Stockholder hereby
represents and warrants to Purchaser as follows:
2.1 Due Organization. The Stockholder, if a corporation, limited
liability company, limited partnership or other entity, has been duly
organized and is validly existing under the laws of the State of its
incorporation, formation or organization.
2.2 Power; Due Authorization; Binding Agreement. The Stockholder has
full legal capacity, power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a legal, valid
and binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except as that enforceability may
be subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and to general principles of
equity.
2.3 Ownership of Shares. On the date hereof, the Owned Shares set
forth on Schedule I hereto are, except as set forth herein, owned of record
or beneficially by the Stockholder in the manner reflected thereon and
include all of the Voting Shares owned of record or beneficially by the
Stockholder, free and clear of any claims, liens, encumbrances and security
interests. As of the date hereof, the Stockholder has, and as of the date
of the stockholder meeting (or action by written consent in lieu thereof)
of the Company in connection with the Merger Agreement and the transactions
contemplated thereby, the Stockholder will have (except as otherwise
permitted by this Agreement ) voting power (to the extent such securities
have voting power) and dispositive power in respect of all of the Owned
Shares, in each case, to the extent necessary to comply with its
obligations hereunder.
2.4 No Conflicts. Other than in connection with any Company Required
Governmental Approvals as contemplated by the Merger Agreement, the
execution and delivery of this Agreement by the Stockholder does not, and
the performance of the terms of this Agreement by the Stockholder will not,
(i) require the Stockholder to obtain the consent or approval of, or make
any filing with or notification to, any governmental or regulatory
authority, domestic or foreign, (ii) require the consent or approval of any
other Person pursuant to any agreement, obligation or instrument binding on
the Stockholder or its properties and assets, (iii) conflict with or
violate any organizational document or law, rule, regulation, order,
judgment or decree applicable to the Stockholder or pursuant to which any
of its or its Affiliates' respective properties or assets are bound or (iv)
violate any other agreement to which the Stockholder or any of its
Affiliates is a party including, without limitation, any voting agreement,
stockholders agreement, irrevocable proxy or voting trust, except for any
consent, approval, filing or notification that has been obtained as of the
date hereof or the failure of which to obtain, make or give would not, or
any conflict or violation which would not, impair the Stockholder's ability
to
-3-
perform its obligations under Section 1.1. The Voting Shares are not, in
respect of the voting or transfer thereof, subject to any other agreement,
including any voting agreement, stockholders agreement, irrevocable proxy
or voting trust, other than the Stockholders' Agreement.
2.5 Acknowledgment. The Stockholder understands and acknowledges that
Purchaser is entering into the Merger Agreement in reliance upon the
Stockholder's execution, delivery and performance of this Agreement.
2.6 The Stockholder Has Adequate Information. The Stockholder is a
sophisticated investor with respect to the Voting Shares and has adequate
information concerning the business and financial condition of the Company
to make an informed decision regarding the transactions contemplated by the
Merger Agreement and has independently and without reliance upon either
Purchaser or Merger Sub and based on such information as the Stockholder
has deemed appropriate, made its own analysis and decision to enter into
this Agreement. The Stockholder acknowledges that neither Purchaser nor
Merger Sub has made and neither makes any representation or warranty,
whether express or implied, of any kind or character except as expressly
set forth in this Agreement and in the Merger Agreement. The Stockholder
acknowledges that the agreements contained herein with respect to the
Voting Shares by the Stockholder are irrevocable, and that the Stockholder
shall have no recourse to the Voting Shares or Purchaser, except with
respect to breaches of representations, warranties, covenants and
agreements expressly set forth in this Agreement.
2.7 Purchaser's Excluded Information. The Stockholder acknowledges and
confirms that (a) Purchaser and/or Merger Sub may possess or hereafter come
into possession of certain non-public information concerning the Voting
Shares and the Company which is not known to the Stockholder and which may
be material to the Stockholder's decision to vote in favor of the Merger
("Purchaser's Excluded Information"), (b) the Stockholder has requested not
to receive Purchaser's Excluded Information and has determined to vote in
favor of the Merger and sell the Voting Shares notwithstanding its lack of
knowledge of Purchaser's Excluded Information, and (c) Purchaser shall have
no liability or obligation to the Stockholder in connection with, and the
Stockholder hereby waives and releases Purchaser from, any claims which the
Stockholder or its successors and assigns may have against Purchaser
(whether pursuant to applicable securities, laws or otherwise) with respect
to the non-disclosure of Purchaser's Excluded Information; provided,
however, nothing contained in this Section 2.7 shall limit the
Stockholder's right to rely upon the express representations and warranties
made by Purchaser in this Agreement and Sections 4.2, 4.3. 4.4, 4.5 and 4.6
of the Merger Agreement, or the Stockholder's remedies in respect of
breaches of any such representations and warranties.
3. Representations and Warranties of Purchaser. Purchaser hereby represents
and warrants to the Stockholders as follows:
-4-
3.1 Power; Due Authorization; Binding Agreement. Purchaser is a
corporation duly organized and validly existing under the laws of the state
of Delaware. Purchaser has full corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation by Purchaser of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Purchaser, and no other proceedings on the
part of Purchaser are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by Purchaser and constitutes a
valid and binding agreement of Purchaser, except as that enforceability may
be subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and to general principles of
equity.
3.2 No Conflicts. Other than in connection with any Parent Required
Governmental Approvals as contemplated by the Merger Agreement, the
execution and delivery of this Agreement by Purchaser does not, and the
performance of the terms of this Agreement by Purchaser will not, (i)
require Purchaser to obtain the consent or approval of, or make any filing
with or notification to, any governmental or regulatory authority, domestic
or foreign, (ii) require the consent or approval of any other Person
pursuant to any agreement, obligation or instrument binding on Purchaser or
its properties and assets, (iii) conflict with or violate any
organizational document or law, rule, regulation, order, judgment or decree
applicable to Purchaser or pursuant to which any of its are bound or (iv)
violate any other material agreement to which Purchaser is a party, except
for any consent, approval, filing or notification that has been obtained,
as of the date hereof, or the failure of which to obtain, make or give
would not, or any conflict or violation which would not, impair Purchaser's
ability to perform is obligations under this Agreement.
4. Certain Covenants of Stockholder. The Stockholder hereby covenants and
agrees with Purchaser as follows:
4.1 Restriction on Transfer; Proxies and Non-Interference. Prior to
the Effective Time, the Stockholder shall not except as otherwise permitted
by this Agreement, (i) directly or indirectly sell, transfer, pledge,
encumber (except due to this Agreement), assign or otherwise dispose of,
limit its right to vote in any manner, or enter into any contract, option
or other arrangement or understanding in respect of the sale, transfer,
pledge, encumbrance, assignment or other disposition of, or limitation on
the voting rights of, any of the Voting Shares, provided that nothing in
this Agreement shall prohibit the exercise by the Stockholder of any
options or warrants to purchase Voting Shares, (ii) grant any proxies or
powers of attorney, deposit any Voting Shares into a voting trust or enter
into a voting agreement in respect of any Voting Shares, (iii) take any
action that would cause any representation or warranty of the Stockholder
contained herein to become untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing its obligations
under this Agreement or (iv) commit or agree to take any of the foregoing
actions. Any transfer of Voting Shares not permitted
-5-
hereby shall be null and void and any such prohibited transfer may and
should be enjoined. If any involuntary transfer of any of the Voting Shares
shall occur (including, but not limited to, a sale by the Stockholder's
trustee in any bankruptcy, or a sale to a purchaser at any creditor's or
court sale), the transferee (which term, as used herein, shall include any
and all transferees and subsequent transferees of the initial transferee)
shall take and hold such Voting Shares subject to all of the restrictions,
liabilities and rights under this Agreement, which shall continue in full
force and effect until valid termination of this Agreement.
4.2 Additional Shares. Other than in connection with dividends
received in connection with Company Preferred Stock, the Stockholder shall
as promptly as practicable notify Purchaser of the number of any new Voting
Shares acquired by the Stockholder, if any, after the date hereof. Any such
shares shall be subject to the terms of this Agreement as though owned by
the Stockholder on the date hereof.
4.3 No Limitations on Actions. The Stockholder signs this Agreement
solely in its capacity as the record and/or beneficial owner, as
applicable, of the Voting Shares. This Agreement shall not limit or
otherwise affect the actions of the Stockholder or any Affiliate, employee,
representative or designee of the Stockholder or any of its Affiliates in
any other capacity, including such Person's capacity, if any, as an officer
of the Company or a member of the board of directors of the Company.
Nothing herein shall limit or affect the Company's rights in connection
with the Merger Agreement.
4.4 Further Assurances. From time to time, at the request of Purchaser
and without further consideration, each Stockholder shall execute and
deliver such additional documents and take all such further action as may
be reasonably requested and consistent with the Stockholder's agreements
hereunder to consummate and make effective the transactions contemplated by
Sections 1 and 4.
4.5 Public Announcement. Except as required by law or the rules of any
national securities exchange or inter-dealer quotation system, the
Stockholder shall consult with Purchaser before issuing any press releases
or otherwise making any public statements with respect to the transactions
contemplated herein and shall not issue any such press release or make any
such public statement without the approval of Purchaser, except as may be
required by law; provided, however, nothing in this Section 4.5 shall be
deemed to limit Stockholder's ability to communicate with its affiliates,
beneficiaries, partners (including, without limitation, limited partners)
or investors or to make any other disclosure or statement not designed to
be released to the general public or press sources, in each case, with
respect to this Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby.
4.6 No Solicitation. Except as otherwise required by law or in order
for the Stockholder to comply with its fiduciary duties, as applicable,
from the date of this Agreement until the Effective Time, the Stockholder,
in its capacity as Stockholder, will not (and will not, in such capacity,
permit any of its directors, officers, agents, representatives, employees,
affiliates or associates (collectively, "Representatives") to
-6-
directly or indirectly: (a) solicit, initiate or encourage the submission
of any proposal or offer from any individual or entity relating to, or
enter into or consummate any transaction relating to, the acquisition of
any capital stock or other voting securities of the Company or any of its
Subsidiaries or any merger, recapitalization, share exchange, sale of
substantial assets or any similar transaction or alternative to the
transactions contemplated by the Merger Agreement or (b) furnish any
information with respect to, or knowingly participate in any effort or
attempt by any individual or entity to do or seek any of the foregoing.
5. Miscellaneous.
5.1 Termination of this Agreement. This Agreement shall (i) terminate
automatically on the termination of the Merger Agreement, in accordance
with its terms and (ii) shall be deemed satisfied in full and terminated
upon the consummation of the Merger
5.2 Effect of Termination. In the event of termination of this
Agreement pursuant to Section 5.1, this Agreement shall become void and of
no effect with no liability on the part of any party hereto; provided,
however, no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such
termination.
5.3 Non-Survival. The representations and warranties made herein shall
not survive the termination of this Agreement.
5.4 Entire Agreement; Assignment; Company as Third-Party Beneficiary.
This Agreement constitutes the entire agreement among the parties in
respect of the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties in
respect of the subject matter hereof. The Company shall be a third-party
beneficiary of this Agreement solely for purposes of Section 1.3 hereof.
Except as provided in the immediately preceding sentence, 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. Nothing in this Agreement shall limit any of
the rights or remedies of Parent under the Merger Agreement, and nothing in
the Merger Agreement or in any other agreement, certificate or instrument
shall limit any of the rights or remedies of Parent or any of the
obligations of Stockholder under this Agreement. This Agreement shall not
be assigned by operation of law or otherwise and shall be binding upon and
inure solely to the benefit of each party hereto; provided, however, that a
Stockholder that is an entity may transfer any Owned Shares to a controlled
Affiliate (which shall be an entity and not a natural person), so long as
prior to such transfer, (i) such controlled Affiliate enters into an
agreement with Purchaser, in form and substance reasonably acceptable to
Purchaser, pursuant to which such controlled Affiliate agrees to be bound
by (and has full ability to perform the terms of) this Agreement to the
full extent such transferring Stockholder is bound, and (ii) the
transferring Stockholder guarantees to Purchaser the full performance by
such controlled Affiliate of such
-7-
obligations, and such transferring Stockholder shall not be relieved of its
obligations hereunder, including in respect of the transferred Owned
Shares. Nothing in this Agreement shall be construed to impose any personal
liability on any officer, employee, director, incorporator, member,
manager, partner or stockholder of the Stockholder or any of its
Affiliates.
5.5 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
5.6 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 received if so given) by hand delivery, by
facsimile transmission or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service, such as
Federal Express, providing proof of delivery. All communications hereunder
shall be delivered to the following parties at the following addresses or
facsimile numbers:
AAH Acquisition Corporation
c/o Berkshire Partners LLC
Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn.: Xx. Xxxxxx X. Small
Telecopy No.: (000) 000-0000
with a copy to:
Weston Presidio Capital
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn.: Xxxxx Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
-8-
with a copy to:
GS Capital Partners II, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx, Esq.
Telecopy No: (000) 000-0000
If to Stockholder, to:
[----------------]
or to such other address or facsimile number as the Person to whom notice is
given may have previously furnished to the others in writing in the manner set
forth above.
5.7 Governing Law; Jurisdiction and Venue; Waiver of Jury Trial.
(a) This Agreement shall 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 conflicts of laws thereof.
(b) Each party hereto irrevocably submits to the exclusive
jurisdiction of any Delaware court or any federal court sitting in the
State of Delaware in any action arising out of or relating to this
Agreement, and hereby irrevocably agrees that all claims in respect of such
action may be exclusively heard and determined in such Delaware state or
federal court. Each party hereto hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding. The parties hereto further
agree, to the extent permitted by law, that final and unappealable judgment
against any of them in any action or proceeding contemplated above shall be
conclusive and may be enforced in any other jurisdiction within or outside
the United States by suit on the judgment, a certified copy of which shall
be conclusive evidence of the fact and amount of such judgment.
(c) To the extent that any party hereto has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) in respect of
itself or its property, each party
-9-
hereto hereby irrevocably waives such immunity in respect of its
obligations in respect of this Agreement.
(d) Each party hereto waives, to the fullest extent permitted by
applicable laws, any right it may have to a trial by jury in respect of any
action, suit or proceeding arising out of or relating to this Agreement.
Each party hereto certifies that it has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications set
forth above in this Section.
5.8 Specific Performance; Cumulative Remedies. The parties hereto
agree that irreparable damage would occur in the event any of the
provisions of this Agreement were not to be 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 remedies at law or
in equity. If any provision of this Agreement or the application thereof to
any person or circumstance is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remaining provisions hereof, or the
application of such provision to persons or circumstances other than those
as to which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby, provided that, if any provision hereof or the application thereof
shall be so held to be invalid, void or unenforceable by a court of
competent jurisdiction, then such court may substitute therefor a suitable
and equitable provision in order to carry out, so far as may be valid and
enforceable, the intent and purpose of the invalid, void or unenforceable
provision. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such rights, powers or remedies by such party.
5.9 Counterparts. This Agreement may be executed by facsimile and in
two or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same Agreement.
5.10 Descriptive Headings. The Section headings contained in this
Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement. All references to
Sections contained in this Agreement mean Sections or Articles of this
Agreement unless otherwise stated.
5.11 Severability. If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by
law. Upon the determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect their original intent as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
-10-
5.12 No Partnership, Agency, or Joint Venture. This Agreement is
intended to create, and creates, a contractual relationship and is not
intended to create, and does not create, any agency, partnership, joint
venture or any like relationship among the parties hereto.
5.13 No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with his or its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of his or its right to exercise any such
or other right, power or remedy or to demand such compliance.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
-11-
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties as of the day first above written.
AAH HOLDINGS CORPORATION
By:___________________________
Name: Xxxxxx X. Small
Title: President
-12-
[Stockholder]
By:___________________________
Name:
-13-
SCHEDULE I
--------------------------------------------------------------------------------
Security Number of Shares
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
