EXHIBIT (d)(3)
[EXECUTION VERSION]
TRANSACTION SUPPORT AGREEMENT
This Transaction Support Agreement, dated as of June 11, 2002 (this
"Agreement"), is made by and among Cemex, S.A. de C.V., a Mexico corporation
("Parent"), Tricem Acquisition, Corp., a Puerto Rico corporation ("Purchaser"),
and the stockholder of Puerto Rican Cement Company, Inc., a Puerto Rico
corporation (the "Company"), identified on the signature page hereto (the
"Stockholder").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Parent, Purchaser and the Company are entering into an Agreement
and Plan of Merger, dated as of the date hereof (as it may be amended from time
to time, the "Merger Agreement"; capitalized terms used and not otherwise
defined in this Agreement have the meanings ascribed to such terms in the Merger
Agreement), pursuant to which (i) Purchaser shall commence a cash tender offer
(as such tender offer may hereafter be amended from time to time in accordance
with the Merger Agreement, the "Offer") to acquire each issued and outstanding
share of common stock, par value $1.00 per share, of the Company ("Common
Stock") in exchange for a net amount of $35.00 in cash (the "Offer Price") in
accordance with and subject to the terms and conditions of the Merger Agreement
and the Offer; and (ii) following consummation of the Offer, the Company shall
merge with Purchaser (the "Merger");
WHEREAS, the Stockholder is the record or beneficial owner of the number of
shares of Common Stock set forth on Schedule A hereto (all such shares of Common
Stock and any shares of Common Stock hereafter acquired by the Stockholder, the
"Shares");
WHEREAS, as a condition to entering into the Merger Agreement and incurring
the obligations set forth therein, including the Offer, Parent and Purchaser
have required that the Stockholder agree to enter into this Agreement and
certain other stockholders of the Company agree to enter into similar
Transaction Support Agreements; and
WHEREAS, the Stockholder wishes to induce Parent and Purchaser to enter
into the Merger Agreement and, therefore, the Stockholder is willing to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
TENDER OF SHARES
Section 1.01 Tender of Shares. The Stockholder agrees to promptly (and, in
any event, not later than two Business Days prior to the scheduled expiration
date of the Offer) tender or cause to be tendered into the Offer, pursuant to
and in accordance with the terms of the Offer, and not withdraw or cause to be
withdrawn (except following the termination of the Offer in accordance with its
terms), all of the Shares. The Stockholder acknowledges and agrees that
Purchaser's obligation to accept for payment shares of Common Stock in the
Offer, including any Shares tendered by a Stockholder, is subject to the terms
and conditions of the Merger Agreement and the Offer.
ARTICLE II
VOTING AGREEMENT
Section 2.01 Voting Agreement. The Stockholder hereby agrees that, from
and after the date hereof and until the date (the "Voting Termination Date")
that is the later of (i) the termination of the Merger Agreement in accordance
with its terms or (ii) the Option Termination Date (as defined below), if any,
at any meeting of the stockholders of the Company, however called, and in any
action by consent of the stockholders of the Company, the Stockholder shall vote
(or cause to be voted) all the Shares (i) in favor of adoption of the Merger
Agreement, the Merger and all the transactions contemplated by the Merger
Agreement and this Agreement and otherwise in such manner as may be necessary to
consummate the Merger; (ii) against any action, proposal, agreement or
transaction that would result in a breach of any covenant, obligation,
agreement, representation or warranty of the Company under the Merger Agreement
or of the Stockholder contained in this Agreement; and (iii) against any action,
agreement, transaction (other than the Merger Agreement or the transactions
contemplated thereby) or proposal (including any Takeover Proposal or Superior
Proposal) that could reasonably be expected to result in any of the conditions
to the Company's obligations under the Merger Agreement not being fulfilled or
that is intended, or could reasonably be expected, to impede, interfere, delay,
discourage or adversely affect the Merger Agreement, the Offer, the Merger or
this Agreement. Any vote by the Stockholder that is not in accordance with this
Section 2.01 shall be considered null and void, and the provisions of Section
2.02 shall be deemed to take immediate effect.
Section 2.02 Irrevocable Proxy. If, and only if, the Stockholder fails to
comply with the provisions of Section 2.01, the Stockholder hereby agrees that
such failure shall result, without any further action by the Stockholder
effective as of the date of such failure, in the constitution and appointment of
Parent and each of its executive officers from and after the date of such
determination until the Voting Termination Date (at which point such
constitution and appointment shall automatically be revoked) as the
Stockholder's attorney, agent and proxy (such constitution and appointment, the
"Irrevocable Proxy"), with full power of substitution, to vote and otherwise act
with
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respect to all the Shares at any meeting of the stockholders of the Company
(whether annual or special and whether or not an adjourned or postponed
meeting), and in any action by written consent of the stockholders of the
Company, on the matters and in the manner specified in Section 2.01. THIS PROXY
AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON
TO WHOM THE STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS
AGREEMENT. The Stockholder hereby revokes all other proxies and powers of
attorney with respect to all the Shares that may have heretofore been appointed
or granted, and no subsequent proxy or power of attorney shall be given (and if
given, shall not be effective) by the Stockholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of the Stockholder and any obligation of the Stockholder under this
Agreement shall be binding upon the heirs, personal representatives, successors
and assigns of the Stockholder.
ARTICLE III
THE OPTION
Section 3.01 Grant of Option. The Stockholder hereby grants to Parent an
irrevocable option (each, an "Option" and, collectively, the "Options") to
purchase all of the Shares (the "Option Shares") at a purchase price per Share
(the "Purchase Price") equal to $35.00, less the value of any dividends per
Option Share declared or paid from and after the date of this Agreement through
the end of the Option Exercise Period and subject to adjustment pursuant to
Section 7.13(a), other than any dividends paid in accordance with clause (A) of
Section 8.2(b)(3) of the Merger Agreement.
Section 3.02 Payment of the Purchase Price. The Purchase Price shall be
payable by Parent in cash by wire transfer in immediately available funds to a
bank account to be designated by the Stockholder in a written notice to Parent
at least two Business Days prior to the Closing Date (as defined below).
Section 3.03 Exercise of Option.
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(a) If either (i) a Termination Fee has been paid or is payable
pursuant to Section 10.3 of the Merger Agreement, (ii) the Merger Agreement
is terminated as a result of the failure to satisfy the Minimum Condition
(as defined in the Merger Agreement) to the Offer and at or prior to the
time of such termination it has become publicly known that a Takeover
Proposal has been made or (iii) if a Subsequent Amendment (as defined in
the Merger Agreement) is received by the Company or becomes publicly known,
then each of the Options shall become exercisable by Parent for a period
(the "Option Exercise Period") commencing on the earlier of the date on
which a Subsequent Amendment is received by Company or becomes publicly
known and the date on which the Merger Agreement is terminated and ending
at 11:59 p.m. (New York time) on the 30th day following the date on which
the Merger Agreement is terminated (the day on which the Option Exercise
Period ends, the "Option Termination Date"). The
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Options shall be exercisable in whole but not in part, and in no event
shall Parent be permitted to exercise an Option with respect to the Shares
unless Parent concurrently exercises all Options to purchase the shares of
Common Stock subject to each Transaction Support Agreement from all
stockholders who have executed a Transaction Support Agreement.
(b) If Parent wishes to exercise the Options during the Option
Exercise Period, Parent shall send a written notice (the "Exercise Notice")
to the Stockholder of its intention to exercise the Stockholder's Option,
specifying the place, and, if then known, the time and the date (the
"Closing Date") of the closing of such purchase (the "Closing"). The
Closing Date shall, subject to satisfaction of the conditions in paragraph
(d), occur on the later of (i) the third Business Day after the date on
which such Exercise Notice is delivered and (ii) one Business Day following
the expiration or termination of the waiting period under the HSR Act
applicable to the consummation of the purchase and sale of the Shares
hereunder.
(c) At the Closing, (i) the Stockholder shall deliver to Parent (or
its designee) the Shares by delivery of a certificate or certificates
evidencing such Shares duly endorsed to Parent or accompanied by stock
powers duly executed in favor of Parent, with all necessary stock transfer
stamps affixed, and (ii) Parent shall pay for the Shares in accordance with
Section 3.02.
(d) The Closing shall be subject to the satisfaction or, in the
case of clause (iii) below, waiver by the Stockholder of each of the
following conditions:
(i) no Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any Law that is then in effect and no
order of any Governmental Authority shall have been entered or be in
effect, in either case that has the effect of making the acquisition of
the Shares by Parent illegal or otherwise restricting, preventing or
prohibiting consummation of the purchase and sale of the Shares
pursuant to the exercise of the Options; and
(ii) any waiting period under the HSR Act applicable to the
consummation of the purchase and sale of the Shares hereunder shall
have expired or been terminated.
(e) At the Closing, (i) the Stockholder will deliver good and valid
title to the Shares free and clear of any Liens and, upon delivery to
Parent of such Shares and payment for the Purchase Price therefor as
contemplated herein, Parent will receive good, valid and marketable title
to the Shares free and clear of any Liens, and (ii) Parent shall deliver to
the Stockholder the Purchase Price.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
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The Stockholder hereby represents and warrants to Parent and to Purchaser
as follows:
Section 4.01 Organization, Authority and Qualification of the Stockholder.
The Stockholder is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization or formation and has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The Stockholder is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary,
except to the extent that the failure to be so licensed or qualified would not
prevent or materially delay the ability of the Stockholder to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement. The execution and delivery of this Agreement by the Stockholder, the
performance by the Stockholder of its obligations hereunder and the consummation
by the Stockholder of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of the Stockholder. This
Agreement has been duly and validly executed and delivered by the Stockholder
and (assuming due authorization, execution and delivery by Parent and Purchaser)
this Agreement constitutes a legal, valid and binding obligation of the
Stockholder enforceable against the Stockholder in accordance with its terms.
Section 4.02 No Conflict; Required Filings and Consents.
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(a) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder shall
not, (i) conflict with or violate the certificate of incorporation and
by-laws, agreement of limited partnership, limited liability company
agreement or equivalent organizational documents, as the case may be, of
the Stockholder, (ii) assuming satisfaction of the requirements set forth
in 4.02(b) below, conflict with or violate any Law applicable to the
Stockholder or by which any property or asset of the Stockholder is bound
or affected or (iii) result in any breach of, or constitute a default (or
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a Lien on any Shares
(other than pursuant to this Agreement) pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation of the Stockholder, except for any such
conflicts, violations, breaches, defaults or other occurrences that would
not prevent or materially delay the ability of the Stockholder to carry out
its obligations under, and to consummate the transactions contemplated by,
this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder shall
not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Authority, except (i) for
applicable requirements, if any, of the Exchange Act, Blue Sky Laws and the
premerger notification requirements of the HSR Act, and (ii) where the
failure to obtain such consents, approvals, authorizations
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or permits, or to make such filings or notifications, would not prevent or
materially delay the ability of the Stockholder to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement.
Section 4.03 Ownership of Shares. As of the date hereof, the Stockholder
is the record or beneficial owner of, and has good title to, the number of
Shares set forth on Schedule A hereto. Except as set forth on Schedule A, the
Shares are all the securities of the Company owned, either of record or
beneficially, by the Stockholder as of the date hereof and the Stockholder does
not have any option or other right to acquire any other securities of the
Company. The Shares owned by the Stockholder are owned free and clear of all
Liens, other than any Liens created by this Agreement. Except as provided in
this Agreement, the Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned by the
Stockholder.
Section 4.04 Absence of Litigation. As of the date of this Agreement,
there is no litigation, suit, claim, action, proceeding or investigation pending
or, to the knowledge of the Stockholder, threatened against the Stockholder, or
any property or asset of the Stockholder, before any Governmental Authority that
seeks to delay or prevent the consummation of the transactions contemplated by
this Agreement.
Section 4.05 Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Each of Parent and Purchaser hereby severally but not jointly represents
and warrants to the Stockholder as to itself as follows:
Section 5.01 Organization, Authority and Qualification. Each of Parent
and Purchaser is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all necessary power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. Each of Parent and
Purchaser is duly licensed or qualified to do business and is in good standing
in each jurisdiction in which the properties owned or leased by it or the
operation of its business makes such licensing or qualification necessary,
except to the extent that the failure to be so licensed or qualified would not
prevent or materially delay the ability of Parent or Purchaser to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement. The execution and delivery of this Agreement by each of Parent and
Purchaser, the performance by each of Parent and Purchaser of its obligations
hereunder and the consummation by each of Parent and Purchaser of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of each of Parent and
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Purchaser. This Agreement has been duly and validly executed and delivered by
each of Parent and Purchaser and (assuming due authorization, execution and
delivery by the Stockholder) this Agreement constitutes a legal, valid and
binding obligation of each of Parent and Purchaser enforceable against Parent
and Purchaser in accordance with its terms.
Section 5.02 No Conflict; Required Filings and Consents.
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(a) The execution and delivery of this Agreement by each of Parent
and Purchaser do not, and the performance of this Agreement by each of
Parent and Purchaser shall not, (i) conflict with or violate the
certificate of incorporation and by-laws of Parent or Purchaser, (ii)
assuming satisfaction of the requirements set forth in Section 5.02(b)
below, conflict with or violate any Law applicable to Parent or Purchaser
or by which any property or asset of Parent or Purchaser is bound or
affected or (iii) result in any breach of, or constitute a default (or
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation of Parent or Purchaser, except for any such conflicts,
violations, breaches, defaults or other occurrences that would not prevent
or materially delay the ability of Parent or Purchaser to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement.
(b) The execution and delivery of this Agreement by each of Parent
and Purchaser do not, and the performance of this Agreement by each of
Parent and Purchaser shall not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any
Governmental Authority, except (i) for applicable requirements, if any, of
the Securities Act, the Exchange Act, Blue Sky Laws and the premerger
notification requirements of the HSR Act, and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or materially delay the ability
of Parent or Purchaser to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement.
ARTICLE VI
COVENANTS OF THE STOCKHOLDER
Section 6.01 No Disposition or Encumbrance of Shares. The Stockholder
hereby agrees that, except as contemplated by this Agreement, the Stockholder
shall not (i) sell, transfer, tender (except into the Offer), pledge, assign,
contribute to the capital of any entity, hypothecate, give or otherwise dispose
of, grant a proxy or power of attorney with respect to (other than the
Irrevocable Proxy), deposit into any voting trust, enter into any voting
agreement, or create or permit to exist any Liens of any nature whatsoever
(other than pursuant to this Agreement) with respect to, any of the Shares (or
agree or consent to, or offer to do, any of the foregoing), or (ii) take any
action that would make any representation or warranty of the Stockholder herein
untrue or
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incorrect in any material respect or have the effect of preventing or disabling
the Stockholder from performing the Stockholder's obligations hereunder.
Section 6.02 No Solicitation of Transactions. The Stockholder shall not,
directly or indirectly, through any director, officer, affiliate, employee,
representative, agent or otherwise, (i) solicit, initiate, endorse, accept or
encourage the submission of any Takeover Proposal, or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or otherwise cooperate in any way with respect to, or
participate in, assist, facilitate, endorse or encourage any proposal that
constitutes, or may reasonably be expected to lead to, a Takeover Proposal;
provided, however, that nothing herein shall prevent any director, officer or
stockholder of the Stockholder from acting in his or her capacity as a director
of the Company, or taking any action in such capacity (including at the
direction of the Company Board), but only in either such case as and to the
extent permitted by Section 8.5 of the Merger Agreement. The Stockholder shall,
and shall direct or cause its directors, officers, affiliates, employees,
representatives and agents to, immediately cease and cause to be terminated any
discussions or negotiations with any parties that may be ongoing with respect to
a Takeover Proposal.
Section 6.03 Further Action; Reasonable Best Efforts. Upon the terms and
subject to the conditions hereof, Parent, Purchaser and the Stockholder shall
use their reasonable best efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
this Agreement.
Section 6.04 Information for Offer Documents and Proxy Statement;
Disclosure. The Stockholder covenants and agrees that none of the information
relating to the Stockholder and its affiliates for inclusion in the Schedule
14D-9, the Offer Documents or, if applicable, the Proxy Statement that has been
furnished to Parent by the Stockholder for inclusion in such documents will, at
(i) the time the Schedule 14D-9 or the Proxy Statement (or any amendment or
supplement thereto) is first filed with the SEC or mailed to stockholders of the
Company or (ii) the time of the Company Stockholders Meeting (in the case of
information included in the Proxy Statement), contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Stockholder agrees
to permit Parent and Purchaser to publish and disclose in the Offer Documents
and, if applicable, the Proxy Statement and any related filings under applicable
securities Laws the Stockholder's identity and ownership of Shares and the
nature of its commitments, arrangements and understandings under this Agreement
and any other information regarding the Stockholder as required by applicable
Law.
ARTICLE VII
MISCELLANEOUS
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Section 7.01 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section 7.01):
(a) if to the Stockholder:
▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(b) if to Parent or Purchaser:
c/o CEMEX
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
and
CEMEX, S.A. de C.V.
Ave. Constitucion 444 Pte.
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: 011-52818-328-3082
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
and
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Section 7.02 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in
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full force and effect so long as the economic or legal substance of the
transactions contemplated hereby and by the Merger Agreement are not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that such transactions be consummated as originally
contemplated to the fullest extent possible.
Section 7.03 Entire Agreement; Assignment. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof. This
Agreement shall not be assigned by operation of law or otherwise, except that
Parent and Purchaser may assign all or any of their rights and obligations
hereunder to any wholly owned subsidiary of Parent, provided that no such
assignment shall relieve Parent or Purchaser of its obligations hereunder.
Section 7.04 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and, except as set forth in
Section 7.10 hereof, nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
Section 7.05 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at Law or in equity.
Section 7.06 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State (other than those
provisions set forth herein that are required to be governed by the Corporation
Law of the Commonwealth of Puerto Rico). All actions and proceedings arising out
of or relating to this Agreement shall be heard and determined exclusively in
any New York state or federal court sitting in the Borough of Manhattan of The
City of New York. The parties hereto hereby (a) submit to the exclusive
jurisdiction of any state or federal court sitting in the Borough of Manhattan
of The City of New York for the purpose of any action arising out of or relating
to this Agreement brought by any party hereto, and (b) irrevocably waive, and
agree not to assert by way of motion, defense, or otherwise, in any such action,
any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, that the venue
of the action is improper, or that this Agreement may not be enforced in or by
any of the above-named courts.
Section 7.07 Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable Law any right it may have
to a trial
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by jury with respect to any litigation directly or indirectly arising out of,
under or in connection with this Agreement. Each of the parties hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the others hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section 7.07.
Section 7.08 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 7.09 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section 7.10 Amendment. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto. Notwithstanding the
foregoing, the provisions of this Agreement shall not be amended without the
prior written consent of the Company.
Section 7.11 Waiver. Any party to this Agreement may (i) extend the time
for the performance of any obligation or other act of any other party hereto,
(ii) waive any inaccuracy in the representations and warranties of another party
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any agreement of another party contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
Section 7.12 Costs and Expenses of This Agreement and the Merger
Agreement. All costs and expenses of the parties hereto, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
Section 7.13 Adjustments.
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(a) In the event (i) of any increase or decrease or other change in
the Shares by reason of stock dividend, stock split, recapitalizations,
combinations, exchanges of shares or the like or (ii) that a Stockholder
becomes the beneficial owner of any additional shares of Common Stock or
other securities of the Company, then (x) the terms of this Agreement shall
apply to the shares of capital stock and other securities of the Company
held by the Stockholder immediately following the effectiveness of the
events described in clause (i), or the Stockholder becoming the beneficial
owner thereof
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pursuant to clause (ii), and (y) the Purchase Price shall be equitably
adjusted to reflect the impact of any event described in clause (i).
(b) The Stockholder hereby agrees to promptly notify Parent and
Purchaser of the number of any new Shares or other securities acquired by
the Stockholder, if any, after the date hereof.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
CEMEX, S.A. DE C.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
TRICEM ACQUISITION, CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice-President
FERRE INVESTMENT FUND, INC.
By: /s/ Antonio ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: Antonio ▇▇▇▇ ▇▇▇▇▇
Title: Chairman
Schedule A
Number of Shares of Common Stock
--------------------------------
282,854