MARIETTA CORPORATION
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August 25, ▇▇▇▇
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Florescue Family Corporation
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Gentlemen:
In consideration of the agreements of Marietta Corporation (the
"Company") set forth herein, each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("BF") and Florescue
Family Corporation ("FFC"; BF and FFC are hereinafter referred to collectively
as "Florescue") hereby agrees, on behalf of itself and each of its affiliates
(as such term is defined in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) that
for a period of two years from the date of this letter agreement (the
"Termination Date"), neither Florescue nor its affiliates will, subject to the
next succeeding paragraph, (i) acquire, or in conjunction with any other person
acquire, by purchase or otherwise, beneficial or record ownership of more than
14.99% of the then issued and outstanding shares of common stock, par value $.01
per share, of the Company (the "Common Stock"), (ii) without the prior written
consent of the Board of Directors of the Company propose to the Company or any
other person any transaction between Florescue, or any of its affiliates, on the
one hand, and the Company or its security holders, or involving any of its
securities or security holders, on the other hand, whether by merger, tender
offer or otherwise, (iii) acquire, or assist, advise or encourage any other
person in acquiring, directly or indirectly, control of the Company, whether by
solicitation of proxies or otherwise, or any of the Company's securities,
businesses or assets, (iv) directly or indirectly, or through any other person,
solicit proxies with respect to the Common Stock or any other securities of the
Company entitled to vote, or become a "participant" in any "election contest"
relating to the election of directors of the Company (as such terms are used in
Rule 14a-11 of
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▇▇▇▇▇▇▇▇▇ Family Corporation
August 25, 1995
Page 2
Regulation A under the Exchange Act) other than as a nominee of the Board of
Directors of the Company on behalf of the slate nominated by the Board of
Directors of the Company, (v) request or demand the call, or participate with or
in any way assist any other person in requesting or demanding the call of a
special or annual meeting of shareholders; or (vi) take any other action, alone
or in concert with any other person, the effect of which would be similar to or
accomplishes the same purpose as any of the foregoing. The term "person" as
used in this letter agreement shall be broadly interpreted to include the media
and any corporation, partnership, group, individual or other entity.
The provisions contained in the preceding paragraph shall be of no
further force or effect, if at any time prior to the Termination Date (other
than in connection with the process now being conducted by ▇▇▇▇▇▇▇, Sachs & Co.
pursuant to which offers to purchase the Company are being solicited), the
Company (i) solicits or assists any other person to acquire beneficial or record
ownership of more than 14.99% of the then outstanding shares of Common Stock,
(ii) solicits or assists any other person to acquire, directly or indirectly,
(x) control of the Company, whether by solicitation of proxies or otherwise, or
(y) all or substantially all of the assets or business of the Company, or (iii)
takes any other action, alone or in concert with any other person, the effect of
which would be to accomplish the same purposes as any of the foregoing.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or under applicable law.
It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this letter agreement by Florescue and that
the Company shall be entitled to equitable relief, including an injunction and
specific performance, as a remedy in addition to all other available remedies at
law or in equity for any such breach. In the event of litigation relating to
this letter agreement, if a court of competent jurisdiction determines by a
final, nonappealable order that either party has breached this letter agreement,
then such party shall be liable and pay to the other party the reasonable legal
fees that the other party has incurred in connection with such litigation,
including any appeal therefrom.
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▇▇▇▇▇▇▇▇▇ Family Corporation
August 25, 1995
Page 3
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction, and there shall
be substituted for the provision at issue a valid and enforceable provision as
similar as possible to the provision at issue.
The Company agrees that, so long as Florescue continues to
beneficially own at least 75% of the shares of the Company he now beneficially
owns, the Company will use its best efforts to cause the nominating committee of
the Board of Directors of the Company to nominate two designees of Florescue for
election as director at any meeting of shareholders intended to be called for
the purpose of electing directors and to be held prior to the Termination Date.
In the event that (i) the nominees of the Board of Directors of the Company are
not elected to such Board at the 1995 Annual Meeting of Shareholders, or (ii)
the Board of Directors shall fail to nominate two designees of Florescue for
election as director at any meeting of shareholders called for the purpose of
electing directors and held prior to the Termination Date, or if such designees
so nominated shall not be elected as directors at any such meeting, then, in
either such case and notwithstanding any other provision of this letter
agreement, this letter agreement shall immediately terminate and be of no
further force or effect.
Two individuals designated by Florescue have been nominated for
election as directors at the 1995 Annual Meeting of Shareholders scheduled for
August 31, 1995. Florescue agrees that at the 1995 Annual Meeting it will, and
will cause each of its Affiliates to, vote all shares of Common Stock
beneficially owned by such Persons for the slate of directors nominated by the
Company's Board of Directors.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York, without reference to conflicts of laws
principles, and shall be binding upon Florescue, and its successors and assigns.
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▇▇▇▇▇▇▇▇▇ Family Corporation
August 25, 1995
Page 4
Please confirm your acceptance of, and agreement with, the foregoing
by signing and returning one copy of this letter to the Company.
Very truly yours,
MARIETTA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
Accepted and agreed to as of this
25th day of August, 1995
FLORESCUE FAMILY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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