ORGANIZATION.
(J)
"SUBSIDIARY" SHALL MEAN, WHEN USED WITH
REFERENCE TO A PERSON, ANY CORPORATION OR OTHER BUSINESS ENTITY OF WHICH SUCH
PERSON DIRECTLY OR INDIRECTLY OWNS (I) THE MAJORITY OF THE OUTSTANDING VOTING
SECURITIES OR (II) VOTING SECURITIES OR EQUITY INTERESTS WHICH GIVE SUCH PERSON
THE POWER TO ELECT A MAJORITY OF THE BOARD OF DIRECTORS OR SIMILAR GOVERNING
BODY OF SUCH ENTITY.
SECTION 9.12.
INTERPRETATION.
(A) THE WORDS
"HEREOF," "HEREIN" AND "HEREWITH" AND WORDS OF SIMILAR IMPORT SHALL, UNLESS
OTHERWISE STATED, BE CONSTRUED TO REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO
ANY PARTICULAR PROVISION OF THIS AGREEMENT, AND ARTICLE, SECTION, PARAGRAPH,
EXHIBIT AND SCHEDULE REFERENCES ARE TO THE ARTICLES, SECTIONS, PARAGRAPHS,
EXHIBITS AND SCHEDULES OF THIS AGREEMENT UNLESS OTHERWISE SPECIFIED.
WHENEVER
THE WORDS "INCLUDE," "INCLUDES" OR "INCLUDING" ARE USED IN THIS AGREEMENT THEY
SHALL BE DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT LIMITATION."
ALL TERMS
DEFINED IN THIS AGREEMENT SHALL HAVE THE DEFINED MEANINGS CONTAINED HEREIN WHEN
USED IN ANY CERTIFICATE OR OTHER DOCUMENT MADE OR DELIVERED PURSUANT HERETO
UNLESS OTHERWISE DEFINED THEREIN.
THE DEFINITIONS CONTAINED IN THIS AGREEMENT
ARE APPLICABLE TO THE SINGULAR AS WELL AS THE PLURAL FORMS OF SUCH TERMS AND TO
THE MASCULINE AS WELL AS TO THE FEMININE AND NEUTER GENDERS OF SUCH TERMS.
ANY
AGREEMENT, INSTRUMENT, STATUTE OR RULE DEFINED OR REFERRED TO HEREIN OR IN ANY
AGREEMENT OR INSTRUMENT THAT IS REFERRED TO HEREIN MEANS SUCH AGREEMENT,
INSTRUMENT, STATUTE OR RULE AS FROM TIME TO TIME AMENDED, MODIFIED OR
SUPPLEMENTED, INCLUDING (IN THE CASE OF AGREEMENTS AND INSTRUMENTS) BY WAIVER OR
CONSENT AND (IN THE CASE OF STATUTES AND RULES) BY SUCCESSION OF COMPARABLE
SUCCESSOR STATUTES AND RULES AND ALL ATTACHMENTS THERETO AND INSTRUMENTS
INCORPORATED THEREIN.
REFERENCES TO A PERSON ARE ALSO TO ITS PERMITTED
SUCCESSORS AND ASSIGNS.
(B)
THE PARTIES HAVE PARTICIPATED JOINTLY IN THE
NEGOTIATION AND DRAFTING OF THIS AGREEMENT.
IN THE EVENT AN AMBIGUITY OR
QUESTION OF INTENT OR INTERPRETATION ARISES, THIS AGREEMENT SHALL BE CONSTRUED
AS IF DRAFTED JOINTLY BY THE PARTIES AND NO PRESUMPTION OR BURDEN OF PROOF SHALL
ARISE FAVORING OR DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY
PROVISIONS OF THIS AGREEMENT.
60
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
on its behalf by its officers thereunto duly authorized, on the day and year
first above written.
EURAMAX INTERNATIONAL, INC.
By:
/s/ J. David Smith
Name:
J. David Smith
Title:
President
AMERIMAX PENNSYLVANIA, INC.
By:
/s/ J. David Smith
Name:
J. David Smith
Title:
President
BERGER HOLDINGS, LTD.
By:
/s/ Joseph F. Weiderman
Name:
Joseph F. Weiderman
Title:
President and Chief Executive
Officer
61
ANNEX A
to
Agreement and Plan of Merger
Conditions to the Offer.
Notwithstanding any other provision of the Offer or
the Merger Agreement, in addition to (and not in limitation of) Purchaser's
rights pursuant to the Agreement to extend and amend the Offer in accordance
with the Merger Agreement, Purchaser shall not be required to accept