EXHIBIT 10.3
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT (this "Agreement"), dated June_18, 1998 by
and between Lyondell Petrochemical Company, a Delaware corporation
("Purchaser"), Lyondell Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of Purchaser ("Merger Sub"), and Atlantic Richfield
Company, a Delaware corporation ("Stockholder").
WHEREAS, capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement;
WHEREAS, Purchaser, Merger Sub and ARCO Chemical Company, a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement") pursuant to which Merger
Sub agrees to make a tender offer (the "Offer") for all outstanding shares of
common stock, par value $1.00 per share (the "Company Common Stock"), of the
Company, at $57.75 per share, net to the seller in cash, without interest
thereon and subject to the conditions set forth in the Merger Agreement, to be
followed by a merger of Merger Sub into the Company (the "Merger"), upon the
terms and conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, Stockholder beneficially owns
80,000,001 shares of Company Common Stock (the "Owned Shares");
WHEREAS, the Board of Directors of the Company has adopted resolutions
approving the Offer, the Merger and, for purposes of Section 203 of the DGCL
(defined in Section 1.2), the Tender and Voting Agreement (as defined below),
recommending that the Company's stockholders accept the Offer and approving the
acquisition of Shares by Merger Sub pursuant to the Offer; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement and to make the Offer, Purchaser and Merger Sub have required that
Stockholder agree to tender all of the Owned Shares pursuant to the Offer,
together with any shares of Company Common Stock acquired after the date hereof
and prior to the termination of the Offer, whether upon the exercise of options,
conversion of convertible securities or otherwise (collectively, the "Shares"),
on the terms and subject to the conditions provided for in this Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by
Purchaser and Merger Sub of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein and therein, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
AGREEMENT TO TENDER
SECTION 1.1. Agreement to Tender. Stockholder hereby agrees that, if
Merger Sub commences the Offer, Stockholder will tender, or cause to be
tendered, and while this Agreement remains in effect shall not withdraw, all of
its Shares to Merger Sub prior to the expiration of the Offer, provided that the
purchase price per Share to be paid pursuant to the Offer shall be no less than
the Offer Price.
SECTION 1.2 Purchaser's Obligations. The obligation of Purchaser to
cause Merger Sub to commence the Offer, conduct and consummate the Offer and
accept for payment, and pay for, any Shares tendered and not withdrawn pursuant
to the Offer shall be subject only to the Offer Conditions. Purchaser shall
comply, and shall cause Merger Sub to comply, with all provisions of Article I
of the Merger Agreement. Subject to the terms and conditions of the Offer,
Merger Sub shall, and Purchaser shall cause Merger Sub to, accept for payment,
and pay for, all Shares validly tendered and not withdrawn pursuant to the
Offer. Purchaser shall provide or cause to be provided to Merger Sub on a
timely basis the funds sufficient to accept for payment, and pay for, any and
all Shares that Merger Sub becomes obligated to accept for payment, and pay for,
pursuant to the Offer. Merger Sub shall make, and Purchaser shall cause Merger
Sub to make, payment to Stockholder of the aggregate purchase price for the
Shares tendered by Stockholder in the Offer on the first Business Day
immediately following the expiration of the Offer by wire transfer of
immediately available funds in US currency to a bank account to be designated in
writing by Stockholder not less than two Business Days prior to the expiration
of the Offer. As used herein, "Business Day" shall mean a day other than a
Saturday, Sunday or other day on which banks in New York, New York are required
to or may be closed and shall consist of the time period from 12:01 a.m. through
12:00 midnight, Eastern time.
ARTICLE II
VOTING AGREEMENT
SECTION 2.1. Voting. Stockholder hereby agrees that, during the time
this Agreement is in effect, at any meeting of the stockholders of the Company,
however called, and at every adjournment or postponement thereof, and in any
action by written consent of the stockholders of the Company, it shall
(i)_appear at the meeting or otherwise cause the Shares to be counted as present
thereat for purposes of establishing a quorum, (ii)_vote its Shares in favor of
the Merger and approval and adoption of the Merger Agreement, and any action
required in furtherance thereof, (iii)_vote its Shares against any action or
agreement that would result in a breach in any material respect of any
representation, warranty or covenant of the Company in the Merger Agreement, and
(iv)_vote its Shares against any action or agreement (other than the Merger
Agreement or the transactions contemplated thereby) that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer,
including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company and a third party or any other proposal of a third party to acquire
the Company.
SECTION 2.2. Irrevocable Proxy. As security for Stockholder's
obligations under Section 2.1 hereof, Stockholder hereby irrevocably constitutes
and appoints Purchaser as its attorney and proxy pursuant to the provisions of
Section 212(c) of the Delaware General Corporation Law ("DGCL"), with full power
of substitution and resubstitution, to vote the Shares at any meeting of
stockholders of the Company, however called, or in connection with any action by
written consent by the stockholders of the Company, in each case only as and to
the extent provided in clauses (i), (ii) and (iii) of Section 2.1 hereof;
provided, however, that, without limiting the foregoing, in any such vote or
other action pursuant to such proxy, the Purchaser shall not in any event have
the right (and such proxy shall not confer the right) to vote against the
Merger, to vote to reduce the Offer Price or the Merger Consideration or
otherwise modify or amend the Merger Agreement to reduce the rights or benefits
of the Company or any stockholders of the Company (including Stockholder) under
the Offer or the Merger Agreement or to reduce the obligations of Purchaser
thereunder; and provided, further, that the proxy granted pursuant to this
Section 2.2 shall irrevocably cease and shall be of no further force or effect
upon (x) any breach by Purchaser of any of its obligations under Section 1.1(a)
of the Merger Agreement, (y) any violation by Purchaser of any of the terms of
this Agreement or (z) the termination of the Merger Agreement or this Agreement
in accordance with its terms. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE,
SUBJECT TO THE FOREGOING AND SECTION 3.1 HEREOF, AND COUPLED WITH AN INTEREST.
Stockholder hereby revokes all other proxies and powers of attorney with respect
to Stockholder's Shares that it may have heretofore appointed or granted, and no
subsequent proxy or power of attorney shall be given or written consent executed
(and if given or executed, shall not be effective) by Stockholder with respect
thereto, other than as contemplated by Section 2.1 hereof.
ARTICLE III
TERMINATION
SECTION 3.1. Termination. (a) This Agreement shall terminate on the
earlier of (i) payment to Stockholder of the full purchase price for the Shares
as provided in the next to last sentence of Section 1.1 hereof, (ii) the
consummation of the Merger, and (iii) the termination of the Merger Agreement in
accordance with its terms.
(b) This Agreement may be terminated by Stockholder if Purchaser
shall have failed to comply with any of its obligations under Section 1.1(a) of
the Merger Agreement.
SECTION 3.2. Effect of Termination. In the event of a termination of
this Agreement as provided in Section 3.1 hereof, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of
Purchaser, Merger Sub or Stockholder or their respective officers or directors
hereunder thereafter; provided, however, that if Purchaser has accepted the
Shares for payment pursuant to the Offer, Purchaser shall be obligated to comply
with the requirements of the next to last sentence of Section 1.1 hereof;
provided, further, however, that nothing herein shall relieve any party for
liability for any breach hereof prior to such termination; provided, further,
however, that the obligations set forth in Section 5.4 (insofar as they relate
to Sections 7.5(b), 7.5(d) and 7.8(e) of the Merger Agreement) shall survive any
termination of this Agreement pursuant to Section 3.1(a)(i) or Section
3.1(a)(ii) hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of Purchaser and Merger
Sub. Purchaser and Merger Sub hereby jointly and severally represent and
warrant to Stockholder as follows:
(a) Organization, Due Authorization. Purchaser is a company duly
organized, validly existing and in good standing under the laws of Delaware.
Purchaser has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Purchaser, and no other corporate proceedings on the
part of Purchaser are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Purchaser and constitutes a valid and binding
agreement of purchaser, enforceable against Purchaser in accordance with its
terms.
(b) Organization, Due Authorization. Merger Sub is a company duly
organized, validly existing and in good standing under the laws of Delaware.
Merger Sub has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Merger Sub, and no other corporate proceedings on the
part of Merger Sub are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Merger Sub and constitutes a valid and binding
agreement of purchaser, enforceable against Merger Sub in accordance with its
terms.
(c) No Conflicts. Other than in connection with or in compliance
with the provisions of the DGCL with respect to the transactions contemplated
hereby, the Exchange Act, the securities laws of the various states, the HSR Act
and foreign laws, no authorization, consent or approval of, or filing with, any
court or any public body or authority is necessary for the consummation by
Purchaser or Merger Sub of the transactions contemplated by this Agreement. The
execution, delivery and performance of this Agreement by Purchaser or Merger Sub
will not constitute a breach, violation or default (or any event which, with
notice or lapse of time or both, would constitute a default) under or, result in
the termination of, or accelerate the performance required by, or result in a
right of termination or acceleration under, or result in the creation of any
lien or encumbrance upon any of the properties or assets of Purchaser or Merger
Sub under, any note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument to which Purchaser or Merger Sub is a party or by
which their respective properties or assets are bound, other than breaches,
violations, defaults, terminations, accelerations or creation of liens and
encumbrances which, in the aggregate, would not materially impair the ability of
Purchaser or Merger Sub (as the case may be) to perform its obligations
hereunder.
SECTION 4.2. Representations and Warranties of Stockholder.
Stockholder hereby represents and warrants to Purchaser and Merger Sub as
follows:
(a) Organization, Due Authorization. Stockholder is a company duly
organized, validly existing and in good standing under the laws of Delaware.
Stockholder has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Stockholder, and no other corporate proceedings on the
part of Stockholder are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
(b) Title; Voting Rights. Such Stockholder has good and valid title
to the Owned Shares, free and clear of any lien, charge, encumbrance or claim of
whatever nature (other than the Stock Repurchase Agreement) and, upon the
purchase of the Shares by Merger Sub, Stockholder will deliver good and valid
title to the Shares, free and clear of any lien, charge, encumbrance or claim of
whatever nature. Except pursuant to this Agreement, the Owned Shares are not
subject to any voting trust agreement or other contract, agreement, arrangement,
commitment or understanding restricting or otherwise relating to the voting,
dividend rights or disposition of the Owned Shares (other than the Stock
Repurchase Agreement).
(c) Ownership of shares of Company Common Stock. On the date hereof,
Stockholder owns, of record or beneficially, 80,000,001 shares of Common Stock.
Stockholder has sole voting power and sole power of disposition with respect to
the Owned Shares, with no restrictions, subject to applicable federal securities
laws, on its rights of disposition pertaining thereto (other than the Stock
Repurchase Agreement).
(d) No Conflicts. Other than in connection with or in compliance
with the provisions of the DGCL with respect to the transactions contemplated
hereby, the Exchange Act, the securities or takeover laws of the various states,
the HSR Act and foreign laws, no authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by Stockholder of the transactions contemplated by this Agreement.
The execution, delivery and performance of this Agreement by Stockholder will
not constitute a breach, violation or default (or any event which, with notice
or lapse of time or both, would constitute a default) under or, result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration under, or result in the creation of any lien or
encumbrance upon any of the properties or assets of Stockholder under, any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument to which Stockholder is a party or by which its properties or assets
are bound, other than breaches, violations, defaults, terminations,
accelerations or creation of liens and encumbrances which, in the aggregate,
would not materially impair the ability of Stockholder to perform its
obligations hereunder.
ARTICLE V
COVENANTS OF STOCKHOLDER
Stockholder hereby covenants and agrees as follows:
SECTION 5.1. Restriction on Transfer, Proxies and Non-Interference.
Stockholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of its Owned Shares or Shares, (ii)
grant any proxies, powers of attorney or other authorization or consent, deposit
any shares of capital stock of the Company into a voting trust or enter into a
voting agreement with respect to any such Shares or (iii) take any action that
would make any representation or warranty of Stockholder contained herein untrue
or incorrect or have the effect of preventing or disabling Stockholder from
performing its obligations under this Agreement.
SECTION 5.2. Additional Shares. Stockholder hereby agrees, while
this Agreement is in effect, to promptly notify Purchaser and Merger Sub of the
number of new shares of Company Common Stock acquired by Stockholder, if any,
after the date hereof.
SECTION 5.3. No Solicitation. Stockholder shall, and shall direct
and use reasonable efforts to cause its officers, directors, employees,
representatives, subsidiaries and agents to, immediately cease any discussions
or negotiations with any parties other than Purchaser and Merger Sub that may be
ongoing with respect to a Takeover Proposal. While this Agreement is in effect,
Stockholder shall not, and shall not authorize or permit any of its officers,
directors,
subsidiaries or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it or any of them to, directly or
indirectly, (i) solicit, initiate or encourage any inquiries or the making of
any proposal that constitutes, or may reasonably be expected to lead to, any
Takeover Proposal, or (ii) participate in any discussions or negotiations
regarding any Takeover Proposal; provided, however, that if, at any time prior
to the acceptance for payment of shares of Company Common Stock pursuant to the
Offer, Stockholder determines in good faith, after consultation with its
financial advisers, that a Takeover Proposal that has not been solicited,
initiated or encouraged after the date hereof in violation of clause (i) above
(or Section 6.2 of the Merger Agreement) constitutes a Superior Proposal,
Stockholder and the Company may (x) furnish information with respect to the
Company and its Subsidiaries to the third party that has made such Takeover
Proposal (and to any investment banker, financial advisor, attorney, accountant
or other representative retained by such party) pursuant to a customary and
reasonable confidentiality agreement and (y) participate in negotiations
regarding such Takeover Proposal.
SECTION 5.4. Merger Agreement. Stockholder agrees to perform the
obligations of Parent set forth in Sections 7.5(b), 7.5(d), 7.8(e), 7.9 and 7.10
of the Merger Agreement.
ARTICLE VI
OTHER AGREEMENTS
SECTION 6.1. Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary or desirable to consummate and make effective the
transactions contemplated by Article I and Article II of this Agreement.
SECTION 6.2. Public Announcements. Each of Purchaser, Merger Sub and
Stockholder Agrees that it will not issue any press release or otherwise make
any public statement with respect to this Agreement or the transactions
contemplated hereby without the prior consent of the other party, which consent
shall not be unreasonably withheld or delayed; provided, however, that such
disclosure can be made without obtaining such prior consent if (i) the
disclosure is required by law or by obligations imposed pursuant to any listing
agreement with the new York Stock Exchange and (ii) the party making such
disclosure has first used its best efforts to consult with the other party about
the form and substance of such disclosure.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Non-Survival. The respective representations and
warranties made herein shall terminate upon (x) Stockholder's sale of the Shares
to Merger Sub in the Offer or (y) the termination of this Agreement.
SECTION 7.2. Entire Agreement; Assignment. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties without the prior written consent of the
other parties, except that Merger Sub may assign its rights and obligations
hereunder to Purchaser or any direct or indirect wholly-owned subsidiary of
Purchaser.
SECTION 7.3. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed do have been duly received if so given) by hand delivery, telegram,
telex or telecopy, by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
To Stockholder as follows:
Xxxx Xxxxx, Esq.
Atlantic Richfield Company
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Copy to:
Xx Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
To Purchaser or Merger Sub:
Xxxxx X. Xxxxxx, Esq.
Lyondell Petrochemical Company
0000 XxXxxxxx Xxxxxx
Xxxxxxx, Xxxxx, 00000
Copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx & Xxxxx, L.L.P.
One Shell Plaza
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
SECTION 7.4. Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the principles of conflicts of laws thereof. Each of the
parties hereto (i) consents to submit itself to the personal jurisdiction of
any federal court located in the State of Delaware or any Delaware state court
in the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, and consents to service of process by notice as provided in
this Agreement, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (iii) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a federal or
state court sitting in the State of Delaware.
SECTION 7.5. Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
SECTION 7.6. Descriptive headings. The descriptive headings used
hereby are inserted for convenience of reference only and are not intended to be
part of or to effect the meaning or interpretation of this Agreement.
SECTION 7.7. Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of 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 portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
IN WITNESS WHEREOF, Purchaser, Merger Sub and Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
LYONDELL PETROCHEMICAL COMPANY
By: /s/ Xxx X. Xxxxx
-------------------------------------------
Name: Xxx X. Xxxxx
Title: President and Chief Executive Officer
LYONDELL ACQUISITION CORPORATION
By: /s/ Xxx X. Xxxxx
-------------------------------------------
Name: Xxx X. Xxxxx
Title: President and Chief Executive Officer
ATLANTIC RICHFIELD COMPANY
By: /s/ Xxxxx X. Dallas
-------------------------------------------
Name: Xxxxx X. Dallas
Title: Senior Vice President and Treasurer
