EXHIBIT 12
FORM
OF
STOCKHOLDER TENDER AGREEMENT-MANAGEMENT
AMONG
NPF HOLDING CORPORATION.
NPF ACQUISITION CORPORATION
AND
CERTAIN HOLDERS OF SHARES
OF
NATIONAL PICTURE & FRAME COMPANY
------------------------------------------
Dated as of September 4, 1997
------------------------------------------
STOCKHOLDER TENDER AGREEMENT
THIS STOCKHOLDER TENDER AGREEMENT, dated as of September 4, 1997 (this
"Agreement"), by and among the persons or entities designated as Stockholders on
the signature page hereto (the "Stockholders" and each a "Stockholder"), NPF
Holding Corporation, a Delaware corporation ("Parent"), and NPF Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of Parent
("Merger Sub") recites and provides as follows.
WHEREAS, the Stockholders collectively own of record and beneficially
certain shares of common stock, par value $.01 per share (the "Company Common
Stock"), of National Picture & Frame Company, a Delaware corporation (the
"Company"), each Stockholder, respectively, owning of record and/or beneficially
the number of shares of Company Common Stock set forth next to its name on Annex
A attached hereto and incorporated by reference herein (such Stockholder's
shares, together with any other voting or equity securities of the Company
hereafter acquired by such Stockholder prior to the termination of this
Agreement, being referred to collectively as the "Shares") provided, however,
that for purposes of this Agreement "Shares" shall be deemed not to include any
shares of the Company Common Stock that are being exchanged (the "Exchanged
Shares") for shares of common stock of Parent pursuant to the Subscription and
Exchange Agreement (each, a "Subscription and Exchange Agreement"), dated as of
the date hereof, between Parent and certain Stockholders;
WHEREAS, concurrently with the execution of this Agreement, Parent,
Merger Sub and the Company, are entering into an Agreement and Plan of Merger,
dated as of the date hereof (as amended from time to time, the "Merger
Agreement"), which provides, among other things, that, upon the terms and
subject to the conditions therein, Merger Sub will make a cash tender offer (the
"Tender Offer") for all outstanding shares of Company Common Stock and will
merge with and into the Company (the "Merger"), in each case at a price of
$12.00 per Share in cash; and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to
enter into the Merger Agreement, Parent and Merger Sub have requested that the
Stockholders agree, and in order to induce Parent and Merger Sub to enter into
the Merger Agreement, the Stockholders have agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1. Representations and Warranties of the Stockholders.
Each Stockholder represents and warrants to Parent and Merger Sub,
severally as to itself and with respect to its Shares, as follows:
(a) Such Stockholder's Shares constitute all of the shares of Company
Common Stock beneficially owned, directly or indirectly, by such Stockholder
other than the Exchanged Shares.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance by such Stockholder of its obligations hereunder
will not, constitute a violation of, conflict with, result in a default (or an
event which, with notice or lapse of time or both, would result in a default)
under, or result in the creation of any Lien on any of such Stockholder's Shares
under (i) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which such Stockholder is a party or by which such
Stockholder is bound, (ii) any judgment, writ, decree, order or ruling
applicable to such Stockholder, or (iii) the organizational documents of such
Stockholder, if applicable.
(c) Such Stockholder has full power and authority to execute, deliver
and perform this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized and no other actions on the part of such Stockholder are required in
order to consummate the transaction contemplated hereby. This Agreement has been
duly and validly executed and delivered by such Stockholder and, assuming due
authorization, execution and delivery by Parent and Merger Sub, constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except to the extent that
enforceability may be limited by applicable law.
(d) Neither the execution and delivery of this Agreement nor the
performance by such Stockholder of its obligations hereunder will (i) violate
any order, writ, injunction or judgment applicable to such Stockholder or (ii)
violate any law, decree, statute, rule or regulation applicable to such
Stockholder or require any consent, authorization or approval of, filing with or
notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act") or the federal securities
laws.
2. Representations and Warranties of Parent.
Parent represents and warrants to the Stockholders as follows:
(a) Parent is (i) duly organized and validly existing and in good
standing under the laws of the State of Delaware, (ii) has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and (iii) has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly and validly executed and
delivered by Parent and constitutes the legal, valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy,
organization, insolvency, moratorium or other laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(b) The execution and delivery of this Agreement by Parent does not,
and the performance by Parent of its obligations hereunder will not, constitute
a violation of, conflict with, or result in a default (or an event which, with
notice or lapse of time or both, would result in a default) under, its charter
or bylaws or any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Parent is a party or by which Parent is bound
or any judgment, writ, decree, order or ruling applicable to Parent.
(c) Neither the execution and delivery of this Agreement nor the
performance by Parent of its obligations hereunder will violate any order, writ,
injunction, judgment, law, decree, statute, rule or regulation applicable to
Parent or require any consent, authorization or approval of, filing with, or
notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the HSR Act or
the federal securities laws.
3. Representations and Warranties of Merger Sub.
Merger Sub represents and warrants to the Stockholders as follows:
(a) Merger Sub is (i) duly organized and validly existing and in good
standing under the laws of the State of Delaware, (ii) has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and (iii) has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly and validly executed and
delivered by Merger Sub and constitutes the legal, valid and binding obligation
of Merger Sub, enforceable against Merger Sub in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, organization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(b) The execution and delivery of this Agreement by Merger Sub does
not, and the performance by Merger Sub of its obligations hereunder will not,
constitute a violation of, conflict with, or result in a default (or an event
which, with notice or lapse of time or both, would result in a default) under,
its charter or bylaws or any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which Merger Sub is a party or by
which Merger Sub is bound or any judgment, writ, decree, order or ruling
applicable to Merger Sub.
(c) Neither the execution and delivery of this Agreement nor the
performance by Merger Sub of its obligations hereunder will violate any order,
writ, injunction, judgment, law, decree, statute, rule or regulation applicable
to Merger Sub or require any consent, authorization or approval of, filing with,
or notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the HSR Act or
the federal securities laws.
4. Tender of Shares.
(a) During the term of this Agreement, each Stockholder hereby agrees
to validly tender and sell (and not withdraw) pursuant to and in accordance with
the terms of the Tender Offer all of such Stockholder's Shares. Upon the
purchase of all Shares, other than Exchanged Shares, owned by a Stockholder
pursuant to the Tender Offer in accordance with this Section 4(a), this
Agreement shall terminate solely with respect to such Stockholder.
Notwithstanding the provisions of this Section 4(a), in the event any
Stockholder withdraws such Stockholder's Shares from the Tender Offer for any
reason or any such Shares are not purchased pursuant to the Tender Offer, such
Shares shall remain subject to the terms of this Agreement. Each Stockholder
acknowledges that Merger Sub's obligation to accept for payment and pay for the
Shares in the Offer is subject to all the terms and conditions of the Offer.
(b) Each Stockholder hereby agrees to permit Parent and Merger Sub to
publish and disclose in the Offer to Purchase and all other related offering
materials filed by Parent or Merger Sub with the Securities and Exchange
Commission (the "SEC") or otherwise by Parent or Sub in connection with the
Tender Offer and, if approval of the stockholders of the Company is required
under applicable law in connection with the Merger, in the proxy statement sent
to the stockholders of the Company, including all documents and schedules filed
with the SEC, its identity and ownership of Company Common Stock and the nature
of its commitments, arrangements and understandings under this Agreement.
(c) The terms of this Agreement shall apply to all Shares issued
pursuant to the exercise of stock options issued by the Company to any
Stockholder, and each Stockholder agrees to tender all Shares issued upon the
exercise of such stock options. Notwithstanding anything in this Agreement to
the contrary, (i) until the exercise of any such stock options, the term
"Shares" as used herein shall be deemed not to include any such stock options,
and (ii) nothing contained herein shall be deemed to require any Stockholder to
exercise such stock options in order to tender the Shares issued upon such
exercise.
5. Transfer of the Shares.
During the term of this Agreement, except as otherwise provided herein,
no Stockholder shall (a) offer to sell, sell, pledge or otherwise dispose of or
transfer any interest in or encumber with any Lien any of such Stockholder's
Shares, except for transfer or sale to any affiliate of such Stockholder who
agrees to be bound by this Agreement, (b) deposit such Stockholder's Shares into
a voting trust, enter into a voting agreement or arrangement with respect to
such Shares or grant any proxy or power of attorney with respect to such Shares,
or (c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect acquisition or sale, assignment or other
disposition of or transfer of any interest in or the voting of any shares of
Company Common Stock or any other securities of the Company. Notwithstanding the
foregoing, a Stockholder may transfer such Stockholder's Shares to a charitable
organization as long as such charitable organization agrees to be bound by the
terms of this Agreement.
6. No Solicitation.
During the term of this Agreement, no Stockholder or any representative
of such person or entity, shall institute, pursue or continue any discussions,
negotiations or agreements (whether preliminary or definitive ) with any person
or entity other than Parent contemplating or providing for any public or private
offering of equity, merger, share exchange, acquisition, purchase or sale of a
significant amount of shares or assets or other business combination or change
in control of the Company, unless the Board of Directors of the Company
concludes in good faith, after receiving the advice of its counsel, that the
failure to take such action is likely to violate the fiduciary obligation of the
directors of the Company under applicable law.
7. Waiver of Appraisal Rights.
Each Stockholder hereby irrevocably waives any rights of appraisal or
rights to dissent from the Merger that such Stockholder may have.
8. Voting of Shares; Irrevocable Proxy.
(a) During the term of this Agreement, each Stockholder in its
capacity as such hereby agrees to vote each of its Shares at any annual, special
or adjourned meeting of the stockholders of the Company (1) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval and adoption of the terms thereof and hereof; and (2) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than 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 or its
subsidiaries; (ii) a sale, lease or transfer of a material amount of assets of
the Company or one of its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; or (iii) (A) any
change in a majority of the persons who constitute the Board of Directors of the
Company as of the date hereof; (B) any change in the present capitalization of
the Company or any amendment of the Company's certificate of incorporation or
bylaws, as amended to date; (C) any other material change in the Company's
corporate structure or business; or (D) any action that is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, or adversely
affect the Merger and the other transactions contemplated by this Agreement and
the Merger Agreement.
(b) Each Stockholder hereby irrevocably constitutes and appoints John
T. Herzog and James C. Wheat, III, and each of them as its sole and exclusive
and true and lawful agent and attorney-in-fact, with full power of substitution,
to vote all Company Common Stock that the holder is entitled to vote as
indicated in Section 8(a) above, to the same extent and with the same effect as
the Stockholder might or could do under any applicable laws or regulations
governing the rights and powers of stockholders of a Delaware corporation. This
proxy shall become effective as of the date hereof and shall expire upon
termination of this Agreement. This proxy is coupled with an interest and shall
be irrevocable and binding upon any and all transferees of the Company Common
Stock so long as it remains in effect pursuant to the terms hereof. This
proxy/power of attorney shall not terminate on disability of the principal. Each
Stockholder will take such further action as may be necessary to effect the
foregoing and hereby revokes any proxy previously granted by such Stockholder
with respect to such Stockholder's Company Stock.
9. Enforcement of the Agreement.
Each Stockholder acknowledges that irreparable damage would 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. It is
accordingly agreed that Parent and Merger Sub will be entitled (i) to an
injunction or injunctions to prevent breaches of this Agreement and (ii) to
specifically enforce the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which it is entitled at law or in equity.
10. Adjustments.
The number and type of securities subject to this Agreement will be
appropriately adjusted in the event of any stock dividends, stock splits,
recapitalizations, combinations, exchanges of shares or the like or any other
action that would have the effect of changing any Stockholder's ownership of the
Company's capital stock or other securities.
11. Termination.
This Agreement will terminate on the earlier of (a) the purchase of all
the Shares pursuant to the Offer in accordance with Section 4, (b) the effective
time of the Merger and (c) the date on which the Merger Agreement is terminated
in accordance with its terms. Upon termination of this Agreement, all
obligations of the parties hereto shall terminate except to the extent that any
such party has committed a material breach of this Agreement prior to such
termination.
12. Expenses.
All fees and expenses incurred by any of the parties hereto shall be
borne by the party incurring such fees and expenses.
13. Brokerage.
Except as disclosed in the Merger Agreement (including the exhibits and
schedules thereto), each party represents and warrants to the others that there
are no claims for finder's fees or brokerage commissions or other like payments
in connection with this Agreement or the transactions contemplated hereby, and
each party agrees to indemnify and hold harmless the other parties from and
against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred in connection with the transactions
contemplated hereby.
14. Miscellaneous.
(a) All representations and warranties contained herein shall
expire at the effective time of the Merger.
(b) Any provision of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment or
supplement shall be effective unless in writing signed by the party or parties
sought to be bound thereby. Any waiver by any party of a breach of any provision
of this Agreement shall not operate as or be construed to be 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 hereof shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(c) This Agreement contains the entire agreement among Parent, Merger
Sub and the Stockholders with respect to the subject matter hereof, and
supersedes all prior agreements among Parent, Merger Sub and the Stockholders
with respect to such matters other than a Subscription and Exchange Agreement.
This Agreement may not be amended, changed, supplemented, waived or otherwise
modified, except upon the delivery of a written agreement executed by the
parties hereto.
(d) The descriptive headings contained herein are for convenience and
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
(e) Any notice provided for in this Agreement will be in writing and
will be either personally delivered, sent by reliable overnight courier,
telecopied or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated, or if to a Stockholder, the address
listed below such Stockholder's name on Annex A hereto.
Notices to the Parent or Merger Sub:
NPF Holding Corporation
NPF Acquisition Corporation
c/o Colonnade Capital, LLC
901 East Byrd Street, Suite 1300
Richmond, Virginia 23219
Attention: Mr. John T. Herzog
Mr. James C. Wheat, III
Telephone Number: (804) 782-3288
Telecopy Number: (804) 782-6606
With a copy (which will not constitute Notice to the Parent or Merger Sub) to:
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219
Attention: Mr. John Owen Gwathmey
Telephone Number: (804) 788-8700
Telecopy Number: (804) 788-8218
or to such other address or to the attention of such other party as any party
may have furnished to the other parties in writing in accordance herewith.
(f) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one agreement.
(g) This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and
assigns. Except as provided herein, neither this Agreement nor any of the
rights, interests or obligations under this Agreement may be assigned by any of
the parties hereto without the prior written consent of the other parties,
except that Merger Sub shall have the right to assign to Parent or any other
direct or indirect wholly owned Subsidiary of Parent any and all rights and
obligations of Merger Sub under this Agreement, including the right to purchase
Shares tendered by any Stockholder pursuant to the terms hereof and the Offer,
provided that any such assignment shall not relieve Merger Sub from any of its
obligations hereunder.
(h) 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 of any thereof by either party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
(j) Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if 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 any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(k) All questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in accordance
with the domestic laws of the State of Delaware, without giving effect to any
choice of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
IN WITNESS WHEREOF, each of the parties hereto as caused this Agreement
to be duly executed as of the date first written above.
NPF HOLDING CORPORATION
By: __________________________________
Name:
Title:
NPF ACQUISITION CORPORATION
By: __________________________________
Name:
Title:
_______________________________________
[Stockholder]
ANNEX A
Number of Number of
Shares Shares
Stockholder Name and Address Exchanged Tendered Total
- ---------------------------- --------- -------- -----
Richard A. Beattie 15,500 42,271 57,771
M. Wesley Jordan, Jr. -- 1,180 1,180
Robert T. Littlejohn 22,917 26,828 49,745
Billy D. Moore 41,667 116,837 158,504
FORM
FOR
STOCKHOLDER TENDER AGREEMENT-NON-MANAGEMENT
AMONG
NPF HOLDING CORPORATION.
NPF ACQUISITION CORPORATION
AND
CERTAIN HOLDERS OF SHARES
OF
NATIONAL PICTURE & FRAME COMPANY
------------------------------------------
Dated as of September 4, 1997
------------------------------------------
STOCKHOLDER TENDER AGREEMENT
THIS STOCKHOLDER TENDER AGREEMENT, dated as of September 4, 1997 (this
"Agreement"), by and among the persons or entities designated as Stockholders on
the signature page hereto (the "Stockholders" and each a "Stockholder"), NPF
Holding Corporation, a Delaware corporation ("Parent"), and NPF Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of Parent
("Merger Sub") recites and provides as follows.
WHEREAS, the Stockholders collectively own of record and beneficially
certain shares of common stock, par value $.01 per share (the "Company Common
Stock"), of National Picture & Frame Company, a Delaware corporation (the
"Company"), each Stockholder, respectively, owning of record and/or beneficially
the number of shares of Company Common Stock set forth next to its name on Annex
A attached hereto and incorporated by reference herein (such Stockholder's
shares, together with any other voting or equity securities of the Company
hereafter acquired by such Stockholder prior to the termination of this
Agreement, being referred to collectively as the "Shares");
WHEREAS, concurrently with the execution of this Agreement, Parent,
Merger Sub and the Company, are entering into an Agreement and Plan of Merger,
dated as of the date hereof (as amended from time to time, the "Merger
Agreement"), which provides, among other things, that, upon the terms and
subject to the conditions therein, Merger Sub will make a cash tender offer (the
"Tender Offer") for all outstanding shares of Company Common Stock and will
merge with and into the Company (the "Merger"), in each case at a price of
$12.00 per Share in cash; and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to
enter into the Merger Agreement, Parent and Merger Sub have requested that the
Stockholders agree, and in order to induce Parent and Merger Sub to enter into
the Merger Agreement, the Stockholders have agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1. Representations and Warranties of the Stockholders.
Each Stockholder represents and warrants to Parent and Merger Sub,
severally as to itself and with respect to its Shares, as follows:
(a) Such Stockholder's Shares constitute all of the shares of Company
Common Stock beneficially owned, directly or indirectly, by such Stockholder.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance by such Stockholder of its obligations hereunder
will not, constitute a violation of, conflict with, result in a default (or an
event which, with notice or lapse of time or both, would result in a default)
under, or result in the creation of any Lien on any of such Stockholder's Shares
under (i) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which such Stockholder is a party or by which such
Stockholder is bound, (ii) any judgment, writ, decree, order or ruling
applicable to such Stockholder, or (iii) the organizational documents of such
Stockholder, if applicable.
(c) Such Stockholder has full power and authority to execute, deliver
and perform this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized and no other actions on the part of such Stockholder are required in
order to consummate the transaction contemplated hereby. This Agreement has been
duly and validly executed and delivered by such Stockholder and, assuming due
authorization, execution and delivery by Parent and Merger Sub, constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except to the extent that
enforceability may be limited by applicable law.
(d) Neither the execution and delivery of this Agreement nor the
performance by such Stockholder of its obligations hereunder will (i) violate
any order, writ, injunction or judgment applicable to such Stockholder or (ii)
violate any law, decree, statute, rule or regulation applicable to such
Stockholder or require any consent, authorization or approval of, filing with or
notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act") or the federal securities
laws.
2. Representations and Warranties of Parent.
Parent represents and warrants to the Stockholders as follows:
(a) Parent is (i) duly organized and validly existing and in good
standing under the laws of the State of Delaware, (ii) has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and (iii) has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly and validly executed and
delivered by Parent and constitutes the legal, valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy,
organization, insolvency, moratorium or other laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(b) The execution and delivery of this Agreement by Parent does not,
and the performance by Parent of its obligations hereunder will not, constitute
a violation of, conflict with, or result in a default (or an event which, with
notice or lapse of time or both, would result in a default) under, its charter
or bylaws or any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Parent is a party or by which Parent is bound
or any judgment, writ, decree, order or ruling applicable to Parent.
(c) Neither the execution and delivery of this Agreement nor the
performance by Parent of its obligations hereunder will violate any order, writ,
injunction, judgment, law, decree, statute, rule or regulation applicable to
Parent or require any consent, authorization or approval of, filing with, or
notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the HSR Act or
the federal securities laws.
3. Representations and Warranties of Merger Sub.
Merger Sub represents and warrants to the Stockholders as follows:
(a) Merger Sub is (i) duly organized and validly existing and in good
standing under the laws of the State of Delaware, (ii) has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and (iii) has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly and validly executed and
delivered by Merger Sub and constitutes the legal, valid and binding obligation
of Merger Sub, enforceable against Merger Sub in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, organization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(b) The execution and delivery of this Agreement by Merger Sub does
not, and the performance by Merger Sub of its obligations hereunder will not,
constitute a violation of, conflict with, or result in a default (or an event
which, with notice or lapse of time or both, would result in a default) under,
its charter or bylaws or any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which Merger Sub is a party or by
which Merger Sub is bound or any judgment, writ, decree, order or ruling
applicable to Merger Sub.
(c) Neither the execution and delivery of this Agreement nor the
performance by Merger Sub of its obligations hereunder will violate any order,
writ, injunction, judgment, law, decree, statute, rule or regulation applicable
to Merger Sub or require any consent, authorization or approval of, filing with,
or notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the HSR Act or
the federal securities laws.
4. Tender of Shares.
(a) During the term of this Agreement, each Stockholder hereby agrees
to validly tender and sell (and not withdraw) pursuant to and in accordance with
the terms of the Tender Offer all of such Stockholder's Shares. Upon the
purchase of all Shares owned by a Stockholder pursuant to the Tender Offer in
accordance with this Section 4(a), this Agreement shall terminate solely with
respect to such Stockholder. Notwithstanding the provisions of this Section
4(a), in the event any Stockholder withdraws such Stockholder's Shares from the
Tender Offer for any reason or any such Shares are not purchased pursuant to the
Tender Offer, such Shares shall remain subject to the terms of this Agreement.
Each Stockholder acknowledges that Merger Sub's obligation to accept for payment
and pay for the Shares in the Offer is subject to all the terms and conditions
of the Offer.
(b) Each Stockholder hereby agrees to permit Parent and Merger Sub to
publish and disclose in the Offer to Purchase and all other related offering
materials filed by Parent or Merger Sub with the Securities and Exchange
Commission (the "SEC") or otherwise by Parent or Sub in connection with the
Tender Offer and, if approval of the stockholders of the Company is required
under applicable law in connection with the Merger, in the proxy statement sent
to the stockholders of the Company, including all documents and schedules filed
with the SEC, its identity and ownership of Company Common Stock and the nature
of its commitments, arrangements and understandings under this Agreement.
(c) The terms of this Agreement shall apply to all Shares issued
pursuant to the exercise of stock options issued by the Company to any
Stockholder, and each Stockholder agrees to tender all Shares issued upon the
exercise of such stock options. Notwithstanding anything in this Agreement to
the contrary, (i) until the exercise of any such stock options, the term
"Shares" as used herein shall be deemed not to include any such stock options,
and (ii) nothing contained herein shall be deemed to require any Stockholder to
exercise such stock options in order to tender the Shares issued upon such
exercise.
5. Transfer of the Shares.
During the term of this Agreement, except as otherwise provided herein,
no Stockholder shall (a) offer to sell, sell, pledge or otherwise dispose of or
transfer any interest in or encumber with any Lien any of such Stockholder's
Shares, except for transfer or sale to any affiliate of such Stockholder who
agrees to be bound by this Agreement, (b) deposit such Stockholder's Shares into
a voting trust, enter into a voting agreement or arrangement with respect to
such Shares or grant any proxy or power of attorney with respect to such Shares,
or (c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect acquisition or sale, assignment or other
disposition of or transfer of any interest in or the voting of any shares of
Company Common Stock or any other securities of the Company. Notwithstanding the
foregoing, a Stockholder may transfer such Stockholder's Shares to a charitable
organization as long as such charitable organization agrees to be bound by the
terms of this Agreement.
6. No Solicitation.
During the term of this Agreement, no Stockholder or any representative
of such person or entity, shall institute, pursue or continue any discussions,
negotiations or agreements (whether preliminary or definitive ) with any person
or entity other than Parent contemplating or providing for any public or private
offering of equity, merger, share exchange, acquisition, purchase or sale of a
significant amount of shares or assets or other business combination or change
in control of the Company, unless the Board of Directors of the Company
concludes in good faith, after receiving the advice of its counsel, that the
failure to take such action is likely to violate the fiduciary obligation of the
directors of the Company under applicable law.
7. Waiver of Appraisal Rights.
Each Stockholder hereby irrevocably waives any rights of appraisal or
rights to dissent from the Merger that such Stockholder may have.
8. Voting of Shares; Irrevocable Proxy.
(a) During the term of this Agreement, each Stockholder in its
capacity as such hereby agrees to vote each of its Shares at any annual, special
or adjourned meeting of the stockholders of the Company (1) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval and adoption of the terms thereof and hereof; and (2) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than 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 or its
subsidiaries; (ii) a sale, lease or transfer of a material amount of assets of
the Company or one of its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; or (iii) (A) any
change in a majority of the persons who constitute the Board of Directors of the
Company as of the date hereof; (B) any change in the present capitalization of
the Company or any amendment of the Company's certificate of incorporation or
bylaws, as amended to date; (C) any other material change in the Company's
corporate structure or business; or (D) any action that is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, or adversely
affect the Merger and the other transactions contemplated by this Agreement and
the Merger Agreement.
(b) Each Stockholder hereby irrevocably constitutes and appoints John
T. Herzog and James C. Wheat, III, and each of them as its sole and exclusive
and true and lawful agent and attorney-in-fact, with full power of substitution,
to vote all Company Common Stock that the holder is entitled to vote as
indicated in Section 8(a) above, to the same extent and with the same effect as
the Stockholder might or could do under any applicable laws or regulations
governing the rights and powers of stockholders of a Delaware corporation. This
proxy shall become effective as of the date hereof and shall expire upon
termination of this Agreement. This proxy is coupled with an interest and shall
be irrevocable and binding upon any and all transferees of the Company Common
Stock so long as it remains in effect pursuant to the terms hereof. This
proxy/power of attorney shall not terminate on disability of the principal. Each
Stockholder will take such further action as may be necessary to effect the
foregoing and hereby revokes any proxy previously granted by such Stockholder
with respect to such Stockholder's Company Stock.
9. Enforcement of the Agreement.
Each Stockholder acknowledges that irreparable damage would 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. It is
accordingly agreed that Parent and Merger Sub will be entitled (i) to an
injunction or injunctions to prevent breaches of this Agreement and (ii) to
specifically enforce the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which it is entitled at law or in equity.
10. Adjustments.
The number and type of securities subject to this Agreement will be
appropriately adjusted in the event of any stock dividends, stock splits,
recapitalizations, combinations, exchanges of shares or the like or any other
action that would have the effect of changing any Stockholder's ownership of the
Company's capital stock or other securities.
11. Termination.
This Agreement will terminate on the earlier of (a) the purchase of all
the Shares pursuant to the Offer in accordance with Section 4, (b) the effective
time of the Merger and (c) the date on which the Merger Agreement is terminated
in accordance with its terms. Upon termination of this Agreement, all
obligations of the parties hereto shall terminate except to the extent that any
such party has committed a material breach of this Agreement prior to such
termination.
12. Expenses.
All fees and expenses incurred by any of the parties hereto shall be
borne by the party incurring such fees and expenses.
13. Brokerage.
Except as disclosed in the Merger Agreement (including the exhibits and
schedules thereto), each party represents and warrants to the others that there
are no claims for finder's fees or brokerage commissions or other like payments
in connection with this Agreement or the transactions contemplated hereby, and
each party agrees to indemnify and hold harmless the other parties from and
against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred in connection with the transactions
contemplated hereby.
14. Miscellaneous.
(a) All representations and warranties contained herein expire at
the effective time of the Merger.
(b) Any provision of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment or
supplement shall be effective unless in writing signed by the party or parties
sought to be bound thereby. Any waiver by any party of a breach of any provision
of this Agreement shall not operate as or be construed to be 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 hereof shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(c) This Agreement contains the entire agreement among Parent, Merger
Sub and the Stockholders with respect to the subject matter hereof, and
supersedes all prior agreements among Parent, Merger Sub and the Stockholders
with respect to such matters. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified, except upon the delivery of a
written agreement executed by the parties hereto.
(d) The descriptive headings contained herein are for convenience and
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
(e) Any notice provided for in this Agreement will be in writing and
will be either personally delivered, sent by reliable overnight courier,
telecopied or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated, or if to a Stockholder, the address
listed below such Stockholder's name on Annex A hereto.
Notices to the Parent or Merger Sub:
NPF Holding Corporation
NPF Acquisition Corporation
c/o Colonnade Capital, LLC
901 East Byrd Street, Suite 1300
Richmond, Virginia 23219
Attention: Mr. John T. Herzog
Mr. James C. Wheat, III
Telephone Number: (804) 782-3288
Telecopy Number: (804) 782-6606
With a copy (which will not constitute Notice to the Parent or Merger Sub) to:
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219
Attention: Mr. John Owen Gwathmey
Telephone Number: (804) 788-8700
Telecopy Number: (804) 788-8218
or to such other address or to the attention of such other party as any party
may have furnished to the other parties in writing in accordance herewith.
(f) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one agreement.
(g) This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and
assigns. Except as provided herein, neither this Agreement nor any of the
rights, interests or obligations under this Agreement may be assigned by any of
the parties hereto without the prior written consent of the other parties,
except that Merger Sub shall have the right to assign to Parent or any other
direct or indirect wholly owned Subsidiary of Parent any and all rights and
obligations of Merger Sub under this Agreement, including the right to purchase
Shares tendered by any Stockholder pursuant to the terms hereof and the Offer,
provided that any such assignment shall not relieve Merger Sub from any of its
obligations hereunder.
(h) 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 of any thereof by either party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
(j) Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if 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 any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(k) All questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in accordance
with the domestic laws of the State of Delaware, without giving effect to any
choice of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
IN WITNESS WHEREOF, each of the parties hereto as caused this Agreement
to be duly executed as of the date first written above.
NPF HOLDING CORPORATION
By: __________________________________
Name:
Title:
NPF ACQUISITION CORPORATION
By: __________________________________
Name:
Title:
_______________________________________
[Stockholder]
ANNEX A
Stockholder Name and Address Number of Shares Tendered
- ---------------------------- -------------------------
Code, Hennessy & Simmons Limited Partnership 1,581,625
Andrew W. Code 0
Daniel J. Hennessy 1,300
Brian P. Simmons 3,500
Arthur L. Goeschel 5,000
Hesperus Partners Ltd. 317,655
Peter B. Foreman 0
John F. Levy 0
Jesse C. Luxton 329,795*
Jon S. Vesely 1,751
White Dwarf Partners, L.P. 279,845
Frank C. Meyer 0
*This number includes 166,000 shares that Mr. Luxton transferred to a charitable
trust in which he is the sole trustee and has sole voting and investment power.