WAIVER AND TERMINATION OF VOTING AGREEMENT
This WAIVER AND TERMINATION OF VOTING AGREEMENT (the "Agreement")
is made and entered into as of April 10th, 2001, by and among Foilmark,
Inc., a Delaware corporation (the "Company") and the undersigned holders of
shares of common stock, par value $.01 per share, of the Company ("Company
Common Stock") (collectively, the "Stockholders").
WHEREAS, the Company and the Stockholders entered into a Voting
Agreement, dated as of April 23, 1999 (the "Voting Agreement"), whereby the
Stockholders agreed to provide for the future voting of their shares of
Company Common Stock with respect to the election of directors of the
Company;
WHEREAS, the Company proposes to enter into an Agreement and Plan
of Merger (the "Merger Agreement"), dated as of the date hereof, with Illinois
Tool Works Inc., a Delaware corporation ("Parent"), and ▇▇▇▇▇▇ Acquisition
Inc., a Delaware corporation, and a wholly owned subsidiary of Parent ("Sub");
WHEREAS, the Company and Stockholders have agreed to enter into
this Agreement in order to induce Parent to enter into the Merger
Agreement;
WHEREAS, pursuant to Section 2.01 of the Voting Agreement, the
Voting Agreement shall terminate in its entirety upon the occurrence of
certain events, among others, including upon the earlier to occur of
(i) the date as of which all parties to the Voting Agreement execute
a written consent to such effect and (ii) on the date on which either the
Foilmark Stockholders as a group, or the HoloPak Stockholders as a group
(each as defined in the Voting Agreement) own less than five percent (5%)
of the outstanding shares of Company Common Stock; and
WHEREAS, defined terms used herein but not otherwise defined herein
shall have the meanings ascribed to such terms in the Merger Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Waiver. For the period of time commencing upon the execution
by the Principal Company Stockholders of the Stock Option and Tender
Agreements and extending until the earlier to occur of (i) immediately
prior to the time at which Parent or Sub, as the case may be, accepts for
payment, and pays for, shares of Company Common Stock, and (ii) the
termination of the Merger Agreement, the Stockholders hereby waive the
provisions of the Voting Agreement to the extent such provisions are
inconsistent with any proxy granted to Parent pursuant to the Stock Option
and Tender Agreements.
2. Termination. Without limiting the generality of Section 2.01
of the Voting Agreement, the parties hereto acknowledge and agree that the
Voting Agreement shall terminate and be of no further force and effect at
the time immediately prior to which Parent or Sub, as the case may be,
accepts for payment, and pays for, the shares of Company Common Stock.
3. Further Assurances. At any time and from time to time after
the date hereof, the parties hereto will execute and deliver all documents
and do all such further acts and things as may reasonably be required to
carry out the intent of the parties hereunder, including, but not limited
to, removing from the certificates representing the shares of Company
Common Stock held by the Stockholders the restrictive legend required by
Section 1.04 of the Voting Agreement.
4. Governing Law. 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.
5. Counterparts. This Agreement may be signed in counterparts,
each of which shall be considered an original and all of which together
shall constitute one agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered as of the date first written above.
FOILMARK, INC.
By: --------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: President and Chief Executive Officer
OVERSEAS PRIVATE INVESTOR PARTNERS
By: Overseas Private Investors, Ltd.
its Managing Partner
By: ---------------------------------------------
Name:
Title:
BRADFORD VENTURE PARTNERS, L.P.
By: Bradford Associates
its General Partner
By: ---------------------------------------------
Name:
Title:
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CHARITABLE REMAINDER TRUST
By: ----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee
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