PURCHASE TRADING PLAN AGREEMENT
Exhibit
99.2
WHEREAS, Steel Partners II, L.P., a
Delaware limited partnership (the “Purchaser”), desires to purchase, from time
to time, certain shares (the “Shares”) of Common Stock, par value $0.10 per
share (the “Common Stock”), of GenCorp Inc., an Ohio corporation (the
“Company”).
WHEREAS, Xxxxx X. Xxxxxxxxx and
Xxxxxx X. Xxxxxxxxxxxx, each an employee of an affiliate of the Purchaser, are
each directors of the Company, and therefore, although on the date hereof they
are not in possession of material nonpublic information about the Company, they
may become aware of material nonpublic information about the Company in the
future.
WHEREAS, the Purchaser desires to enter
into this agreement for the purpose of establishing a trading plan to make
purchases of Shares in compliance with all applicable laws, including, but not
limited to, Section 10(b) of the Securities Exchange Act of 1934, as amended
(the “1934 Act”), and the rules and regulations promulgated thereunder,
including, but not limited to, Rule 10b5-1. References herein to this
“Agreement” refer to this agreement and specifically include the trading plan
described herein.
NOW, IT IS AGREED, as of this 12th day
of February, 2010 by the Purchaser and Mutual Securities, Inc. (the “Broker”) as
follows:
Section 1. Terms of
Purchase.
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(a)
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The
Purchaser desires that the Broker effect purchases of the Shares on its
behalf in accordance with trading requirements adopted by the Purchaser
and to be delivered in writing to the Broker by separate letter (the
“Initial Trading Instructions”). The Initial Trading
Instructions shall take effect no earlier than ten (10) days following the
date hereof.
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(b)
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In
furtherance of Section 1(a) hereof, the Purchaser directs the Broker to
purchase, in customary brokerage transactions, the Shares, for the
Purchaser’s account or accounts, in the Broker’s sole discretion as to
execution and timing, subject to the condition that as of the time of any
purchase of Shares, any individual employee of the Broker making the
Broker’s investment decisions on behalf of the Purchaser shall not be in
possession of or aware of material nonpublic information relating to the
Company’s business, operations or prospects or the value of the Common
Stock (“Material Nonpublic
Information”).
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(c)
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Notwithstanding
the foregoing, the Broker shall not purchase Shares at any time when the
Broker, in its sole discretion, shall have determined that such purchase
would violate applicable law, including, without limitation, Section 10(b)
of the 1934 Act and the rules and regulations promulgated thereunder and
Section 5 of the Securities Act of 1933, as amended (the “1933
Act”).
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(d)
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The
Purchaser agrees that, during the term of this Agreement, it shall not
exercise any subsequent influence over how, when or whether to effect
purchases of the Shares, except that the Purchaser may amend this
Agreement as set forth in Section 3 hereof. Each of the
Purchaser and the Broker agrees that it will not discuss with the other
the Company’s business, operations or prospects or any other information
likely to be related to the value of the Shares or likely to influence a
decision to purchase the Shares. Notwithstanding the preceding
sentence, with the approval of counsel to the Broker, the Purchaser may
communicate with Broker personnel who are not responsible for, and have no
ability to influence, the execution of the trading plan set forth in this
Agreement.
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Section 2. Representations, Warranties
and Covenants.
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(a)
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The
Purchaser represents, warrants and covenants to the Broker as
follows:
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(i)
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The
Purchaser is not, as of the date hereof, aware of or in possession of
Material Nonpublic Information.
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(ii)
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During
the term of this Agreement, the Purchaser will not engage, and will not
cause others to engage on behalf of the Purchaser, in any transactions
(other than (x) purchases of Shares pursuant to this Agreement, or (y)
exercises of stock options issued pursuant to the Company’s stock option
plans; provided that the Purchaser complies with Rule 16b-3 under the 1934
Act in connection with any such exercise and the related securities) involving any
security into which the Common Stock is convertible or any other related
security or derivative, including, without limitation, corresponding or
hedging transactions with respect to the Common Stock. The
Purchaser also agrees not to enter into any binding contract with respect
to any transactions described in the preceding
sentence.
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(iii)
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The
Purchaser will at all times, in connection with the performance of this
Agreement, comply with all applicable laws, including, without limitation,
Section 16 of the 1934 Act and the rules and regulations promulgated
thereunder.
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(iv)
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The
Purchaser agrees to provide such additional information and to execute
such additional documents or instruments as may be reasonably requested by
the Company or the Broker in connection with the performance of this
Agreement and to confirm compliance with applicable
law.
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(v)
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The
Chief Financial Officer of the Company has approved the form of this
Agreement.
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(vi)
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This
Agreement constitutes the legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
and other laws affecting the enforceability of creditors’ rights and
general principles of equity, and as rights to indemnity hereunder may be
limited by applicable law. The Shares are not subject to any
liens, security interests or other impediments to transfer, nor is there
any litigation, arbitration or other proceeding pending, or to the
Purchaser’s knowledge threatened, that would prevent or interfere with the
purchase of the Shares under this
Agreement.
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(b)
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The
Broker represents, warrants and covenants to the Purchaser as
follows:
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(i)
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The
Broker has implemented reasonable policies and procedures, taking into
consideration the nature of the Broker’s business, to ensure that
individuals making investment decisions will not violate the laws
prohibiting trading on the basis of Material Nonpublic
Information. These policies and procedures include those that
restrict any purchase or sale, or cause any purchase or sale, of any
security as to which the Broker has Material Nonpublic Information, as
well as those that prevent such individuals from becoming aware of or in
possession of such Material Nonpublic
Information.
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(ii)
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In
connection with all purchases of Shares, the Broker shall deliver to the
Purchaser by facsimile or electronic mail, no later than the close of
business on the date such transaction is effected, all information
necessary (to the extent that the Broker possesses such information) for
the Purchaser to make all required Form 4 and 5 filings, as required by
Section 16(a) of the 1934 Act with regard to purchases made pursuant to
this Agreement.
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(iii)
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This
Agreement constitutes the legal, valid and binding obligation of the
Broker enforceable against the Broker in accordance with its terms, except
as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other
laws affecting the enforceability of creditors’ rights and general
principles of equity, and as rights to indemnity hereunder may be limited
by applicable law.
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Section 3. Amendments. This Agreement
(including the Initial Trading Instructions) may not be amended by the parties
hereto, except as follows: The parties hereto may amend the provisions of this
Agreement (including the Initial Trading Instructions) upon notice to the
Company; provided that at the time of such amendment, the Purchaser was not in
possession of or aware of Material Nonpublic Information and only upon the
written consent of an executive officer of the Company (or his/her
designee). Any modification by the Purchaser will be made in good
faith and not as part of a scheme to evade the prohibitions of Rule 10b5-1. The
amended Agreement or amended Initial Trading Instructions, as the case may be,
shall not take effect until thirty (30) days after the amendment is
adopted. During the thirty (30) day period between the adoption date
of the amendment and the effective date of the amendment, the unmodified
Agreement or Initial Trading Instructions, as the case may be, will remain in
effect.
Section
4. Termination. This Agreement
shall terminate upon the earlier to occur of the following:
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(a)
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The
close of business on March 15, 2010;
or
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(b)
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The
Broker purchases the maximum number of Shares allowable under the Initial
Trading Instructions, as may be amended as provided in Section 3 hereof;
or
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(c)
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The
Agreement is terminated by either party immediately upon receipt of
written notice to the other party; provided, however, that with respect to
any termination by the Purchaser pursuant to this Section 4(c) at the time
of such termination, such termination was made in good faith and not as
part of a scheme to evade the prohibitions of Rule 10b5-1;
or
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(d)
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Any
purchase effected pursuant to this Agreement that violates (or in the
opinion of counsel to the Company or the Broker is likely to violate)
Section 16 of the 1934 Act, any other provision of the Federal securities
laws or regulations adopted by the U.S. Securities and Exchange Commission
thereunder, or any other applicable Federal or State law or regulation;
or
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(e)
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The
Purchaser materially breaches its obligations under this Agreement;
or
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(f)
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The
Purchaser and/or the Company enter into a contract that prevents or
materially restricts purchases by the Purchaser under this
Agreement.
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If the
Agreement is terminated pursuant to Sections 4(c), (d), (e) or (f) and a new
purchase trading plan agreement with respect to purchases of the Common Stock is
entered into with the Broker or any other person, the Purchaser hereby agrees
that the new purchase trading plan will not take effect until thirty (30) days after the
termination of this Agreement.
Section
5. Indemnification
and Limitation
on Liability; No Tax, Accounting or Legal Advice.
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(a)
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The
Purchaser agrees to indemnify and hold harmless the Broker (and its
directors, officers, employees and affiliates) from and against all
claims, liabilities, losses, damages and expenses (including reasonable
attorneys’ fees and costs) arising out of or attributable
to: (i) any material breach by the Purchaser of this Agreement
(including the Purchaser’s representations and warranties), (ii) any
violation by the Purchaser of applicable laws or regulations and (iii) any
action taken by the Broker in good faith and without negligence pursuant
to this Agreement. This indemnification will survive the
termination of this Agreement.
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(b)
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Notwithstanding
any other provision herein, the Broker will not be liable to the Purchaser
for: (i) special, indirect, punitive, exemplary, or
consequential damages, or incidental losses or damages of any kind,
including but not limited to lost profits, lost savings, and loss of use
of facility or equipment, regardless of whether arising from breach of
contract, warranty, tort, strict liability or otherwise, and even if
advised of the possibility of such losses or damages or if such losses or
damages could have been reasonably foreseen, or (ii) any failure to
perform or for any delay in performance that results from a cause or
circumstance that is beyond its reasonable control, including but not
limited to failure of electronic or mechanical equipment, strikes, failure
of common carrier or utility systems, severe weather, market disruptions
or other causes commonly known as “acts of
God.”
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(c)
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The
Purchaser acknowledges and agrees that the Broker has not provided the
Purchaser with any tax, accounting or legal advice with respect to this
Agreement.
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Section
6. Governing Law. This Agreement
(including the Initial Trading Instructions) will be governed by, and construed
in accordance with, the laws of the State of New York, without regard to such
State’s conflict of laws rules.
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Section
7. Entire
Agreement. This Agreement (including the Initial
Trading Instructions) constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes any previous or
contemporaneous agreements, understandings, proposals or promises with respect
thereto, whether written or oral.
Section
8. Assignment. This Agreement and
each party’s rights and obligations hereunder may not be assigned or delegated
without the written permission of the other party and shall inure to the benefit
of each party’s successors and permitted assigns, whether by merger,
consolidation or otherwise.
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remainder of this page intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the date first above written.
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STEEL
PARTNERS II, L.P.
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By:
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STEEL
PARTNERS II GP LLC
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its
General Partner
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Chief
Operating Officer
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MUTUAL
SECURITIES, INC.
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By:
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/s/
Xxxxxxxx X. Xxxx
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Name:
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Xxxxxxxx
X. Xxxx
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Title:
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President
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