Exhibit 20
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of August 16,
2003, is made by and between the undersigned, a shareholder (the
"Shareholder") of SPS Technologies, Inc., a Pennsylvania corporation (the
"Company"), and Precision Castparts Corp., an Oregon corporation ("Parent").
Capitalized terms used in this Agreement but not otherwise defined have the
same meanings ascribed to such terms in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Star Acquisition, LLC, a wholly owned Pennsylvania subsidiary of
Parent ("Acquisition Sub"), and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which the Company will merge with and into Acquisition Sub (the "Merger"),
upon the terms and conditions set forth therein; and
WHEREAS the Shareholder desires that the Merger occur and that the
Shareholder receive, at the Shareholder's election in accordance with the
Merger Agreement, the Shareholder's portion of the Merger Consideration;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
1. Representations of Shareholder.
1.1 The Shareholder represents and warrants that, as of the date
of this Agreement, the Shareholder is the beneficial holder of the number of
shares of the capital stock of the Company set forth on the signature page to
this Agreement ("Shares") free and clear of all Liens (other than Liens under
applicable Law) which would adversely affect the ability of the Shareholder to
comply with the terms of this Agreement.
1.2 The Shareholder represents and warrants that the Shareholder
does not own beneficially (as such term is defined in the Exchange Act) or of
record (a) any shares of the capital stock of the Company, other than the
Shares or (b) any rights to acquire any shares of the capital stock of the
Company, other than options held by the Shareholder or its affiliates and the
Shares issuable on exercise of such outstanding options.
1.3 The Shareholder represents and warrants that the Shareholder
has full power and authority to make, enter into and carry out the terms of
this Agreement. This Agreement has been duly executed and delivered by the
Shareholder and assuming the due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief
and other equitable remedies.
1.4 The Shareholder represents and warrants that the execution
and delivery of this Agreement by the Shareholder do not, and the performance
of this Agreement by the Shareholder will not: (a) conflict with or violate
any order applicable to the Shareholder or by which the Shareholder or any of
the Shareholder's properties or Shares is bound or affected; (b) result in any
material breach of or constitute a default (with notice or lapse of time, or
both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any Lien
applicable to any of the Shares pursuant to any written, oral or other
agreement, contract or legally binding commitment to which the Shareholder is
a party or by which the Shareholder or any of the Shareholder's properties
(including but not limited to the Shares) is bound or affected; or (c) require
any written, oral or other agreement, contract or legally binding commitment
of any third party except, in each case, a violation, conflict, breach,
default or commitment which would not be reasonably likely to have a material
adverse effect on such Shareholder's ability to consummate the transactions
contemplated by this Agreement.
1.5 The Shareholder represents and warrants that the
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through Termination Time (as defined in Section 11.4 hereof) and
will be accurate in all respects as of the date of the consummation of the
Merger as if made on that date.
2. Agreement to Vote Shares; Proxy; Waiver.
2.1 Voting. The Shareholder agrees that, prior to the
Termination Time, at any meeting of the shareholders of the Company, however
called, and in any action taken by written consent of shareholders of the
Company without a meeting, the Shareholder shall vote the Shareholder's Shares
and any shares of the capital stock of the Company acquired after the date of
this Agreement and prior to the applicable record date ("New Shares"), and
shall cause any holder of record of the Shareholder's Shares or New Shares to
vote (a) to approve the Merger and to approve and adopt the Merger Agreement,
(b) to approve any action required in furtherance of the Merger, and (c)
against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Merger
Agreement or that would preclude fulfillment of a condition under the Merger
Agreement to the Company's, Parent's or Acquisition Sub's respective
obligations to consummate the Merger.
2.2 Proxy. [Intentionally deleted]
2.3 Waiver.
(a) The Shareholder hereby agrees not to exercise any
rights of appraisal and any dissenters' rights that the Shareholder may have
(whether under applicable law or otherwise) with respect to the Shares and any
shares of Parent Common Stock receivable upon conversion of any Shares in
connection with the Merger.
(b) The Shareholder hereby waives any rights of first
refusal, preemptive rights, rights of redemption or repurchase, rights to
notice and similar rights of the Shareholder under any agreement, arrangement
or understanding applicable to the Shares or New Shares (other than any
Shareholder rights plan or other rights offered pro rata to all Shareholders
of the Company), in each case as the same may apply to the execution and
delivery of the Merger Agreement and the consummation of the Merger and the
other transactions and acts contemplated by the Merger Agreement. Effective
immediately prior to the Effective Time, the Shareholder hereby agrees and
consents to the termination of any such rights and agreements. The Shareholder
agrees to take such actions, and execute and deliver such agreements and
documents, as may reasonably be requested by Parent in order to effect,
confirm or evidence the foregoing waivers and termination.
3. No Voting Trusts. The Shareholder agrees that, prior to the
Termination Time, it will not, and it will use reasonable best efforts to not
permit any Person under the Shareholder's control to, deposit any of the
Shareholder's Shares in a voting trust or subject any of the Shareholder's
Shares to any arrangement with respect to the voting of such Shares other than
agreements entered into with Parent.
4. No Proxy Solicitations. The Shareholder agrees that the
Shareholder will not, nor will the Shareholder permit any Person under the
Shareholder's control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act) in opposition to or competition with the consummation of the Merger, (b)
subject to Section 9 hereof, directly or indirectly solicit, encourage,
initiate or otherwise facilitate any inquiries or the making of any proposal
or offer with respect to an Acquisition Proposal or engage in any negotiation
concerning, or provide any confidential information or data to, or have any
discussions with any Person relating to, an Acquisition Proposal, or (c)
become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company for the
purpose of opposing or competing with the consummation of the Merger.
5. Transfer and Encumbrance. Except for gifts given without
consideration where the recipient executes a voting agreement in form and
substance similar to this Agreement, the Shareholder agrees that, prior to the
Termination Time, the Shareholder will not, directly or indirectly (a)
transfer, sell, offer, contract or agree to sell, pledge or otherwise dispose
of or encumber any of the Shares or any New Shares or (b) announce any
transfer, sale, offer, contract of sale or other disposition of, any of the
Shares or any New Shares, to any Person other than (A) pursuant to the Merger,
or (B) with prior written consent, which consent will not unreasonably
withheld (provided that the exercise of Company options shall not be subject
to the terms of this Section 4), unless the person or entity to whom Shares or
New Shares have been sold, transferred or disposed agrees to be bound by this
Agreement as if a party hereto.
6. Specific Performance. Each party hereto severally acknowledges
that it will be impossible to measure in money the damage to the other party
if a party hereto fails to comply with any of the obligations imposed by this
Agreement and that, in the event of any such failure, the other party will not
have an adequate remedy at law or damages. Accordingly, each party hereto
severally agrees that injunctive relief or other equitable remedy, in addition
to remedies at law or damages, is the appropriate remedy for any such failure
and will not oppose the granting of such relief on the basis that the other
party has an adequate remedy at law. Each party hereto severally agrees that
it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining
such equitable relief.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
8. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the
parties hereto with respect to the subject matter hereof. This Agreement may
not be amended, supplemented or modified, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall
any such waiver be deemed a continuing waiver of any provision hereof by such
party.
9. Shareholder Capacity. The execution of this Agreement by
Shareholder shall be solely in the Shareholder's capacity as the beneficial
owner of the Shares held by Shareholder, and Shareholder makes no agreement or
understanding herein in the Shareholder's capacity, if any, as a director,
officer or employee of the Company or any of its subsidiaries.
10. Preparation of S-4 and Proxy Statement/Prospectus. Following the
consummation of the Merger, Parent, with the assistance of the Company shall,
as soon as practicable, prepare and Parent shall file with the SEC a
post-effective amendment to the Form S-4 (the "Post-Effective Amendment") for
the offer and sale of the Parent Common Stock received by Shareholder in the
Merger pursuant to the Merger in order to permit Shareholder to freely sell
such shares of Parent Common Stock for at least a one-year period following
the Merger. Parent shall use commercially reasonable efforts to have the
Post-Effective Amendment declared effective under the Securities Act of 1933
(the "Securities Act") as promptly as practicable after such filing. Parent
shall also take any action required to be taken under any applicable state
securities laws in connection with the issuance of Parent Common Stock in the
Merger. Parent will advise Shareholder and the Company, promptly after it
receives notice thereof, of the time when the Post-Effective Amendment has
become effective or any supplement or amendment has been filed, the issuance
of any stop order, the suspension of the qualification of the Parent Common
Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Post-Effective
Amendment or comments thereon and responses thereto or requests by the SEC for
additional information. In the event that such Post-Effective Amendment may
not be used for the foregoing purposes, Parent shall promptly following the
Merger prepare, file and use commercially reasonable efforts to cause to be
declared effective by the SEC a registration statement on Form S-3 (the "Form
S-3") to permit Shareholder, for a one-year period following the Merger to
offer and sell shares of Parent Common Stock received in the Merger. Subject
to Section 11.8, all costs, expenses, filing fees associated with the
preparation, filing and maintaining of the Post-Effective Amendment or the
Form S-3 shall be borne by Parent, including the costs and expenses (including
reasonable counsel fees) incurred by Shareholder in connection with its review
of and participation in connection with the Post-Effective Amendment or the
Form S-3.
11. Miscellaneous.
11.1 This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State
of Delaware without regard to its conflicts of law provisions.
11.2 If any provision of this Agreement or the application of
such provision to any Person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and the
application of such provision to Persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
11.3 This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument. Facsimile signatures shall be
valid and binding as original manual signatures.
11.4 This Agreement shall terminate upon the earliest to occur
of (i) the consummation of the Merger or (ii) termination of the Merger
Agreement (the "Termination Time"); provided, however, that Section 10 shall
survive the consummation of the Merger. Upon such termination, no party shall
have any further obligations or liabilities hereunder.
11.5 All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
11.6 From time to time and without additional consideration, the
Shareholder will execute and deliver, or cause to be executed and delivered,
such additional or further transfers, assignments, endorsements, proxies,
consents and other instruments, and perform such further acts, as Parent may
reasonably request for the purpose of effectively carrying out and furthering
the intent of this Agreement.
11.7 No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement will be effective unless such waiver
is set forth in a writing signed by such party, which writing must refer
hereto. No waiver by any party of such condition or breach, in any one
instance, will be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
11.8 Parent agrees that if the Merger is consummated, it shall
pay all fees, costs and expenses (including reasonable attorney fees) up to an
aggregate of $25,000 that are incurred by Shareholder and the other
shareholders of the Company that are entering into similar voting agreements
with Parent in connection with the preparation of this Agreement and the
transactions contemplated hereby (including pursuant to Section 10).
11.9 The obligations of the Shareholder set forth in this
Agreement shall not be effective or binding upon the Shareholder until after
such time as the Merger Agreement is executed and delivered by Parent,
Acquisition Sub and the Company. The parties agree that there is not and has
not been any other agreement, arrangement or understanding between the parties
hereto with respect to the matters set forth herein.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
Precision Castparts Corp.
/s/ Xxxxxxx X. Xxxxxxx
By:_________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior President and Chief
Financial Officer
Tinicum Investors
/s/ Xxxx X. Xxxxxxxxxx
By:_________________________________
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Partner
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Number of Shares of Common Stock
owned by the Shareholder as of the
date of this Agreement: 1,528,138
By: /s/ Xxxx X. Xxxxxxxxxx
__________________________________
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Partner
Exhibit 21
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of August 16,
2003, is made by and between the undersigned, a shareholder (the
"Shareholder") of SPS Technologies, Inc., a Pennsylvania corporation (the
"Company"), and Precision Castparts Corp., an Oregon corporation ("Parent").
Capitalized terms used in this Agreement but not otherwise defined have the
same meanings ascribed to such terms in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Star Acquisition, LLC, a wholly owned Pennsylvania subsidiary of
Parent ("Acquisition Sub"), and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which the Company will merge with and into Acquisition Sub (the "Merger"),
upon the terms and conditions set forth therein; and
WHEREAS the Shareholder desires that the Merger occur and that the
Shareholder receive, at the Shareholder's election in accordance with the
Merger Agreement, the Shareholder's portion of the Merger Consideration;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
1. Representations of Shareholder.
1.1 The Shareholder represents and warrants that, as of the date
of this Agreement, the Shareholder is the beneficial holder of the number of
shares of the capital stock of the Company set forth on the signature page to
this Agreement ("Shares") free and clear of all Liens (other than Liens under
applicable Law) which would adversely affect the ability of the Shareholder to
comply with the terms of this Agreement.
1.2 The Shareholder represents and warrants that the Shareholder
does not own beneficially (as such term is defined in the Exchange Act) or of
record (a) any shares of the capital stock of the Company, other than the
Shares or (b) any rights to acquire any shares of the capital stock of the
Company, other than options held by the Shareholder or its affiliates and the
Shares issuable on exercise of such outstanding options.
1.3 The Shareholder represents and warrants that the Shareholder
has full power and authority to make, enter into and carry out the terms of
this Agreement. This Agreement has been duly executed and delivered by the
Shareholder and assuming the due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief
and other equitable remedies.
1.4 The Shareholder represents and warrants that the execution
and delivery of this Agreement by the Shareholder do not, and the performance
of this Agreement by the Shareholder will not: (a) conflict with or violate
any order applicable to the Shareholder or by which the Shareholder or any of
the Shareholder's properties or Shares is bound or affected; (b) result in any
material breach of or constitute a default (with notice or lapse of time, or
both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any Lien
applicable to any of the Shares pursuant to any written, oral or other
agreement, contract or legally binding commitment to which the Shareholder is
a party or by which the Shareholder or any of the Shareholder's properties
(including but not limited to the Shares) is bound or affected; or (c) require
any written, oral or other agreement, contract or legally binding commitment
of any third party except, in each case, a violation, conflict, breach,
default or commitment which would not be reasonably likely to have a material
adverse effect on such Shareholder's ability to consummate the transactions
contemplated by this Agreement.
1.5 The Shareholder represents and warrants that the
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through Termination Time (as defined in Section 11.4 hereof) and
will be accurate in all respects as of the date of the consummation of the
Merger as if made on that date.
2. Agreement to Vote Shares; Proxy; Waiver.
2.1 Voting. The Shareholder agrees that, prior to the
Termination Time, at any meeting of the shareholders of the Company, however
called, and in any action taken by written consent of shareholders of the
Company without a meeting, the Shareholder shall vote the Shareholder's Shares
and any shares of the capital stock of the Company acquired after the date of
this Agreement and prior to the applicable record date ("New Shares"), and
shall cause any holder of record of the Shareholder's Shares or New Shares to
vote (a) to approve the Merger and to approve and adopt the Merger Agreement,
(b) to approve any action required in furtherance of the Merger, and (c)
against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Merger
Agreement or that would preclude fulfillment of a condition under the Merger
Agreement to the Company's, Parent's or Acquisition Sub's respective
obligations to consummate the Merger.
2.2 Proxy. [Intentionally deleted]
2.3 Waiver.
(a) The Shareholder hereby agrees not to exercise any
rights of appraisal and any dissenters' rights that the Shareholder may have
(whether under applicable law or otherwise) with respect to the Shares and any
shares of Parent Common Stock receivable upon conversion of any Shares in
connection with the Merger.
(b) The Shareholder hereby waives any rights of first
refusal, preemptive rights, rights of redemption or repurchase, rights to
notice and similar rights of the Shareholder under any agreement, arrangement
or understanding applicable to the Shares or New Shares (other than any
Shareholder rights plan or other rights offered pro rata to all Shareholders
of the Company), in each case as the same may apply to the execution and
delivery of the Merger Agreement and the consummation of the Merger and the
other transactions and acts contemplated by the Merger Agreement. Effective
immediately prior to the Effective Time, the Shareholder hereby agrees and
consents to the termination of any such rights and agreements. The Shareholder
agrees to take such actions, and execute and deliver such agreements and
documents, as may reasonably be requested by Parent in order to effect,
confirm or evidence the foregoing waivers and termination.
3. No Voting Trusts. The Shareholder agrees that, prior to the
Termination Time, it will not, and it will use reasonable best efforts to not
permit any Person under the Shareholder's control to, deposit any of the
Shareholder's Shares in a voting trust or subject any of the Shareholder's
Shares to any arrangement with respect to the voting of such Shares other than
agreements entered into with Parent.
4. No Proxy Solicitations. The Shareholder agrees that the
Shareholder will not, nor will the Shareholder permit any Person under the
Shareholder's control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act) in opposition to or competition with the consummation of the Merger, (b)
subject to Section 9 hereof, directly or indirectly solicit, encourage,
initiate or otherwise facilitate any inquiries or the making of any proposal
or offer with respect to an Acquisition Proposal or engage in any negotiation
concerning, or provide any confidential information or data to, or have any
discussions with any Person relating to, an Acquisition Proposal, or (c)
become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company for the
purpose of opposing or competing with the consummation of the Merger.
5. Transfer and Encumbrance. Except for gifts given without
consideration where the recipient executes a voting agreement in form and
substance similar to this Agreement, the Shareholder agrees that, prior to the
Termination Time, the Shareholder will not, directly or indirectly (a)
transfer, sell, offer, contract or agree to sell, pledge or otherwise dispose
of or encumber any of the Shares or any New Shares or (b) announce any
transfer, sale, offer, contract of sale or other disposition of, any of the
Shares or any New Shares, to any Person other than (A) pursuant to the Merger,
or (B) with prior written consent, which consent will not unreasonably
withheld (provided that the exercise of Company options shall not be subject
to the terms of this Section 4), unless the person or entity to whom Shares or
New Shares have been sold, transferred or disposed agrees to be bound by this
Agreement as if a party hereto.
6. Specific Performance. Each party hereto severally acknowledges
that it will be impossible to measure in money the damage to the other party
if a party hereto fails to comply with any of the obligations imposed by this
Agreement and that, in the event of any such failure, the other party will not
have an adequate remedy at law or damages. Accordingly, each party hereto
severally agrees that injunctive relief or other equitable remedy, in addition
to remedies at law or damages, is the appropriate remedy for any such failure
and will not oppose the granting of such relief on the basis that the other
party has an adequate remedy at law. Each party hereto severally agrees that
it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining
such equitable relief.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
8. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the
parties hereto with respect to the subject matter hereof. This Agreement may
not be amended, supplemented or modified, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall
any such waiver be deemed a continuing waiver of any provision hereof by such
party.
9. Shareholder Capacity. The execution of this Agreement by
Shareholder shall be solely in the Shareholder's capacity as the beneficial
owner of the Shares held by Shareholder, and Shareholder makes no agreement or
understanding herein in the Shareholder's capacity, if any, as a director,
officer or employee of the Company or any of its subsidiaries.
10. Preparation of S-4 and Proxy Statement/Prospectus. Following the
consummation of the Merger, Parent, with the assistance of the Company shall,
as soon as practicable, prepare and Parent shall file with the SEC a
post-effective amendment to the Form S-4 (the "Post-Effective Amendment") for
the offer and sale of the Parent Common Stock received by Shareholder in the
Merger pursuant to the Merger in order to permit Shareholder to freely sell
such shares of Parent Common Stock for at least a one-year period following
the Merger. Parent shall use commercially reasonable efforts to have the
Post-Effective Amendment declared effective under the Securities Act of 1933
(the "Securities Act") as promptly as practicable after such filing. Parent
shall also take any action required to be taken under any applicable state
securities laws in connection with the issuance of Parent Common Stock in the
Merger. Parent will advise Shareholder and the Company, promptly after it
receives notice thereof, of the time when the Post-Effective Amendment has
become effective or any supplement or amendment has been filed, the issuance
of any stop order, the suspension of the qualification of the Parent Common
Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Post-Effective
Amendment or comments thereon and responses thereto or requests by the SEC for
additional information. In the event that such Post-Effective Amendment may
not be used for the foregoing purposes, Parent shall promptly following the
Merger prepare, file and use commercially reasonable efforts to cause to be
declared effective by the SEC a registration statement on Form S-3 (the "Form
S-3") to permit Shareholder, for a one-year period following the Merger to
offer and sell shares of Parent Common Stock received in the Merger. Subject
to Section 11.8, all costs, expenses, filing fees associated with the
preparation, filing and maintaining of the Post-Effective Amendment or the
Form S-3 shall be borne by Parent, including the costs and expenses (including
reasonable counsel fees) incurred by Shareholder in connection with its review
of and participation in connection with the Post-Effective Amendment or the
Form S-3.
11. Miscellaneous.
11.1 This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State
of Delaware without regard to its conflicts of law provisions.
11.2 If any provision of this Agreement or the application of
such provision to any Person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and the
application of such provision to Persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
11.3 This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument. Facsimile signatures shall be
valid and binding as original manual signatures.
11.4 This Agreement shall terminate upon the earliest to occur
of (i) the consummation of the Merger or (ii) termination of the Merger
Agreement (the "Termination Time"); provided, however, that Section 10 shall
survive the consummation of the Merger. Upon such termination, no party shall
have any further obligations or liabilities hereunder.
11.5 All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
11.6 From time to time and without additional consideration, the
Shareholder will execute and deliver, or cause to be executed and delivered,
such additional or further transfers, assignments, endorsements, proxies,
consents and other instruments, and perform such further acts, as Parent may
reasonably request for the purpose of effectively carrying out and furthering
the intent of this Agreement.
11.7 No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement will be effective unless such waiver
is set forth in a writing signed by such party, which writing must refer
hereto. No waiver by any party of such condition or breach, in any one
instance, will be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
11.8 Parent agrees that if the Merger is consummated, it shall
pay all fees, costs and expenses (including reasonable attorney fees) up to an
aggregate of $25,000 that are incurred by Shareholder and the other
shareholders of the Company that are entering into similar voting agreements
with Parent in connection with the preparation of this Agreement and the
transactions contemplated hereby (including pursuant to Section 10).
11.9 The obligations of the Shareholder set forth in this
Agreement shall not be effective or binding upon the Shareholder until after
such time as the Merger Agreement is executed and delivered by Parent,
Acquisition Sub and the Company. The parties agree that there is not and has
not been any other agreement, arrangement or understanding between the parties
hereto with respect to the matters set forth herein.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
Precision Castparts Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior President and Chief
Financial Officer
Xxxx X. Xxxxxxxxxx
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Number of Shares of Common Stock
owned by the Shareholder as of the
date of this Agreement: 14,138
Number of options held by the
Shareholder as of the
date of this Agreement: 6,426
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------
Exhibit 22
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of August 16,
2003, is made by and between the undersigned, a shareholder (the
"Shareholder") of SPS Technologies, Inc., a Pennsylvania corporation (the
"Company"), and Precision Castparts Corp., an Oregon corporation ("Parent").
Capitalized terms used in this Agreement but not otherwise defined have the
same meanings ascribed to such terms in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Star Acquisition, LLC, a wholly owned Pennsylvania subsidiary of
Parent ("Acquisition Sub"), and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which the Company will merge with and into Acquisition Sub (the "Merger"),
upon the terms and conditions set forth therein; and
WHEREAS the Shareholder desires that the Merger occur and that the
Shareholder receive, at the Shareholder's election in accordance with the
Merger Agreement, the Shareholder's portion of the Merger Consideration;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
1. Representations of Shareholder.
1.1 The Shareholder represents and warrants that, as of the date
of this Agreement, the Shareholder is the beneficial holder of the number of
shares of the capital stock of the Company set forth on the signature page to
this Agreement ("Shares") free and clear of all Liens (other than Liens under
applicable Law) which would adversely affect the ability of the Shareholder to
comply with the terms of this Agreement.
1.2 The Shareholder represents and warrants that the Shareholder
does not own beneficially (as such term is defined in the Exchange Act) or of
record (a) any shares of the capital stock of the Company, other than the
Shares or (b) any rights to acquire any shares of the capital stock of the
Company, other than options held by the Shareholder or its affiliates and the
Shares issuable on exercise of such outstanding options.
1.3 The Shareholder represents and warrants that the Shareholder
has full power and authority to make, enter into and carry out the terms of
this Agreement. This Agreement has been duly executed and delivered by the
Shareholder and assuming the due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief
and other equitable remedies.
1.4 The Shareholder represents and warrants that the execution
and delivery of this Agreement by the Shareholder do not, and the performance
of this Agreement by the Shareholder will not: (a) conflict with or violate
any order applicable to the Shareholder or by which the Shareholder or any of
the Shareholder's properties or Shares is bound or affected; (b) result in any
material breach of or constitute a default (with notice or lapse of time, or
both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any Lien
applicable to any of the Shares pursuant to any written, oral or other
agreement, contract or legally binding commitment to which the Shareholder is
a party or by which the Shareholder or any of the Shareholder's properties
(including but not limited to the Shares) is bound or affected; or (c) require
any written, oral or other agreement, contract or legally binding commitment
of any third party except, in each case, a violation, conflict, breach,
default or commitment which would not be reasonably likely to have a material
adverse effect on such Shareholder's ability to consummate the transactions
contemplated by this Agreement.
1.5 The Shareholder represents and warrants that the
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through Termination Time (as defined in Section 11.4 hereof) and
will be accurate in all respects as of the date of the consummation of the
Merger as if made on that date.
2. Agreement to Vote Shares; Proxy; Waiver.
2.1 Voting. The Shareholder agrees that, prior to the
Termination Time, at any meeting of the shareholders of the Company, however
called, and in any action taken by written consent of shareholders of the
Company without a meeting, the Shareholder shall vote the Shareholder's Shares
and any shares of the capital stock of the Company acquired after the date of
this Agreement and prior to the applicable record date ("New Shares"), and
shall cause any holder of record of the Shareholder's Shares or New Shares to
vote (a) to approve the Merger and to approve and adopt the Merger Agreement,
(b) to approve any action required in furtherance of the Merger, and (c)
against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Merger
Agreement or that would preclude fulfillment of a condition under the Merger
Agreement to the Company's, Parent's or Acquisition Sub's respective
obligations to consummate the Merger.
2.2 Proxy. [Intentionally deleted]
2.3 Waiver.
(a) The Shareholder hereby agrees not to exercise any
rights of appraisal and any dissenters' rights that the Shareholder may have
(whether under applicable law or otherwise) with respect to the Shares and any
shares of Parent Common Stock receivable upon conversion of any Shares in
connection with the Merger.
(b) The Shareholder hereby waives any rights of first
refusal, preemptive rights, rights of redemption or repurchase, rights to
notice and similar rights of the Shareholder under any agreement, arrangement
or understanding applicable to the Shares or New Shares (other than any
Shareholder rights plan or other rights offered pro rata to all Shareholders
of the Company), in each case as the same may apply to the execution and
delivery of the Merger Agreement and the consummation of the Merger and the
other transactions and acts contemplated by the Merger Agreement. Effective
immediately prior to the Effective Time, the Shareholder hereby agrees and
consents to the termination of any such rights and agreements. The Shareholder
agrees to take such actions, and execute and deliver such agreements and
documents, as may reasonably be requested by Parent in order to effect,
confirm or evidence the foregoing waivers and termination.
3. No Voting Trusts. The Shareholder agrees that, prior to the
Termination Time, it will not, and it will use reasonable best efforts to not
permit any Person under the Shareholder's control to, deposit any of the
Shareholder's Shares in a voting trust or subject any of the Shareholder's
Shares to any arrangement with respect to the voting of such Shares other than
agreements entered into with Parent.
4. No Proxy Solicitations. The Shareholder agrees that the
Shareholder will not, nor will the Shareholder permit any Person under the
Shareholder's control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act) in opposition to or competition with the consummation of the Merger, (b)
subject to Section 9 hereof, directly or indirectly solicit, encourage,
initiate or otherwise facilitate any inquiries or the making of any proposal
or offer with respect to an Acquisition Proposal or engage in any negotiation
concerning, or provide any confidential information or data to, or have any
discussions with any Person relating to, an Acquisition Proposal, or (c)
become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company for the
purpose of opposing or competing with the consummation of the Merger.
5. Transfer and Encumbrance. Except for gifts given without
consideration where the recipient executes a voting agreement in form and
substance similar to this Agreement, the Shareholder agrees that, prior to the
Termination Time, the Shareholder will not, directly or indirectly (a)
transfer, sell, offer, contract or agree to sell, pledge or otherwise dispose
of or encumber any of the Shares or any New Shares or (b) announce any
transfer, sale, offer, contract of sale or other disposition of, any of the
Shares or any New Shares, to any Person other than (A) pursuant to the Merger,
or (B) with prior written consent, which consent will not unreasonably
withheld (provided that the exercise of Company options shall not be subject
to the terms of this Section 4), unless the person or entity to whom Shares or
New Shares have been sold, transferred or disposed agrees to be bound by this
Agreement as if a party hereto.
6. Specific Performance. Each party hereto severally acknowledges
that it will be impossible to measure in money the damage to the other party
if a party hereto fails to comply with any of the obligations imposed by this
Agreement and that, in the event of any such failure, the other party will not
have an adequate remedy at law or damages. Accordingly, each party hereto
severally agrees that injunctive relief or other equitable remedy, in addition
to remedies at law or damages, is the appropriate remedy for any such failure
and will not oppose the granting of such relief on the basis that the other
party has an adequate remedy at law. Each party hereto severally agrees that
it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining
such equitable relief.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
8. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the
parties hereto with respect to the subject matter hereof. This Agreement may
not be amended, supplemented or modified, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall
any such waiver be deemed a continuing waiver of any provision hereof by such
party.
9. Shareholder Capacity. The execution of this Agreement by
Shareholder shall be solely in the Shareholder's capacity as the beneficial
owner of the Shares held by Shareholder, and Shareholder makes no agreement or
understanding herein in the Shareholder's capacity, if any, as a director,
officer or employee of the Company or any of its subsidiaries.
10. Preparation of S-4 and Proxy Statement/Prospectus. Following the
consummation of the Merger, Parent, with the assistance of the Company shall,
as soon as practicable, prepare and Parent shall file with the SEC a
post-effective amendment to the Form S-4 (the "Post-Effective Amendment") for
the offer and sale of the Parent Common Stock received by Shareholder in the
Merger pursuant to the Merger in order to permit Shareholder to freely sell
such shares of Parent Common Stock for at least a one-year period following
the Merger. Parent shall use commercially reasonable efforts to have the
Post-Effective Amendment declared effective under the Securities Act of 1933
(the "Securities Act") as promptly as practicable after such filing. Parent
shall also take any action required to be taken under any applicable state
securities laws in connection with the issuance of Parent Common Stock in the
Merger. Parent will advise Shareholder and the Company, promptly after it
receives notice thereof, of the time when the Post-Effective Amendment has
become effective or any supplement or amendment has been filed, the issuance
of any stop order, the suspension of the qualification of the Parent Common
Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Post-Effective
Amendment or comments thereon and responses thereto or requests by the SEC for
additional information. In the event that such Post-Effective Amendment may
not be used for the foregoing purposes, Parent shall promptly following the
Merger prepare, file and use commercially reasonable efforts to cause to be
declared effective by the SEC a registration statement on Form S-3 (the "Form
S-3") to permit Shareholder, for a one-year period following the Merger to
offer and sell shares of Parent Common Stock received in the Merger. Subject
to Section 11.8, all costs, expenses, filing fees associated with the
preparation, filing and maintaining of the Post-Effective Amendment or the
Form S-3 shall be borne by Parent, including the costs and expenses (including
reasonable counsel fees) incurred by Shareholder in connection with its review
of and participation in connection with the Post-Effective Amendment or the
Form S-3.
11. Miscellaneous.
11.1 This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State
of Delaware without regard to its conflicts of law provisions.
11.2 If any provision of this Agreement or the application of
such provision to any Person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and the
application of such provision to Persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
11.3 This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument. Facsimile signatures shall be
valid and binding as original manual signatures.
11.4 This Agreement shall terminate upon the earliest to occur
of (i) the consummation of the Merger or (ii) termination of the Merger
Agreement (the "Termination Time"); provided, however, that Section 10 shall
survive the consummation of the Merger. Upon such termination, no party shall
have any further obligations or liabilities hereunder.
11.5 All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
11.6 From time to time and without additional consideration, the
Shareholder will execute and deliver, or cause to be executed and delivered,
such additional or further transfers, assignments, endorsements, proxies,
consents and other instruments, and perform such further acts, as Parent may
reasonably request for the purpose of effectively carrying out and furthering
the intent of this Agreement.
11.7 No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement will be effective unless such waiver
is set forth in a writing signed by such party, which writing must refer
hereto. No waiver by any party of such condition or breach, in any one
instance, will be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
11.8 Parent agrees that if the Merger is consummated, it shall
pay all fees, costs and expenses (including reasonable attorney fees) up to an
aggregate of $25,000 that are incurred by Shareholder and the other
shareholders of the Company that are entering into similar voting agreements
with Parent in connection with the preparation of this Agreement and the
transactions contemplated hereby (including pursuant to Section 10).
11.9 The obligations of the Shareholder set forth in this
Agreement shall not be effective or binding upon the Shareholder until after
such time as the Merger Agreement is executed and delivered by Parent,
Acquisition Sub and the Company. The parties agree that there is not and has
not been any other agreement, arrangement or understanding between the parties
hereto with respect to the matters set forth herein.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
Precision Castparts Corp.
/s/ Xxxxxxx X. Xxxxxxx
By:_________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial
Officer
RIT Capital Partners plc
/s/ X.X. Xxxx
By:_________________________________
Name: X.X. Xxxx
Title: Alternate Director
Address: RIT Capital Partners plc
00 Xx. Xxxxx'x Xxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Telecopy: 011-44-207-493-6815
Number of Shares of Common Stock
owned by the Shareholder as of the
date of this Agreement: 264,622
By: /s/ X.X. Xxxx
___________________
Name: X.X. Xxxx
Title: Alternate Director
Exhibit 23
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of August 16,
2003, is made by and between the undersigned, a shareholder (the
"Shareholder") of SPS Technologies, Inc., a Pennsylvania corporation (the
"Company"), and Precision Castparts Corp., an Oregon corporation ("Parent").
Capitalized terms used in this Agreement but not otherwise defined have the
same meanings ascribed to such terms in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Star Acquisition, LLC, a wholly owned Pennsylvania subsidiary of
Parent ("Acquisition Sub"), and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which the Company will merge with and into Acquisition Sub (the "Merger"),
upon the terms and conditions set forth therein; and
WHEREAS the Shareholder desires that the Merger occur and that the
Shareholder receive, at the Shareholder's election in accordance with the
Merger Agreement, the Shareholder's portion of the Merger Consideration;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
1. Representations of Shareholder.
1.1 The Shareholder represents and warrants that, as of the date
of this Agreement, the Shareholder is the beneficial holder of the number of
shares of the capital stock of the Company set forth on the signature page to
this Agreement ("Shares") free and clear of all Liens (other than Liens under
applicable Law) which would adversely affect the ability of the Shareholder to
comply with the terms of this Agreement.
1.2 The Shareholder represents and warrants that the Shareholder
does not own beneficially (as such term is defined in the Exchange Act) or of
record (a) any shares of the capital stock of the Company, other than the
Shares or (b) any rights to acquire any shares of the capital stock of the
Company, other than options held by the Shareholder or its affiliates and the
Shares issuable on exercise of such outstanding options.
1.3 The Shareholder represents and warrants that the Shareholder
has full power and authority to make, enter into and carry out the terms of
this Agreement. This Agreement has been duly executed and delivered by the
Shareholder and assuming the due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief
and other equitable remedies.
1.4 The Shareholder represents and warrants that the execution
and delivery of this Agreement by the Shareholder do not, and the performance
of this Agreement by the Shareholder will not: (a) conflict with or violate
any order applicable to the Shareholder or by which the Shareholder or any of
the Shareholder's properties or Shares is bound or affected; (b) result in any
material breach of or constitute a default (with notice or lapse of time, or
both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any Lien
applicable to any of the Shares pursuant to any written, oral or other
agreement, contract or legally binding commitment to which the Shareholder is
a party or by which the Shareholder or any of the Shareholder's properties
(including but not limited to the Shares) is bound or affected; or (c) require
any written, oral or other agreement, contract or legally binding commitment
of any third party except, in each case, a violation, conflict, breach,
default or commitment which would not be reasonably likely to have a material
adverse effect on such Shareholder's ability to consummate the transactions
contemplated by this Agreement.
1.5 The Shareholder represents and warrants that the
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through Termination Time (as defined in Section 11.4 hereof) and
will be accurate in all respects as of the date of the consummation of the
Merger as if made on that date.
2. Agreement to Vote Shares; Proxy; Waiver.
2.1 Voting. The Shareholder agrees that, prior to the
Termination Time, at any meeting of the shareholders of the Company, however
called, and in any action taken by written consent of shareholders of the
Company without a meeting, the Shareholder shall vote the Shareholder's Shares
and any shares of the capital stock of the Company acquired after the date of
this Agreement and prior to the applicable record date ("New Shares"), and
shall cause any holder of record of the Shareholder's Shares or New Shares to
vote (a) to approve the Merger and to approve and adopt the Merger Agreement,
(b) to approve any action required in furtherance of the Merger, and (c)
against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Merger
Agreement or that would preclude fulfillment of a condition under the Merger
Agreement to the Company's, Parent's or Acquisition Sub's respective
obligations to consummate the Merger.
2.2 Proxy. [Intentionally deleted]
2.3 Waiver.
(a) The Shareholder hereby agrees not to exercise any
rights of appraisal and any dissenters' rights that the Shareholder may have
(whether under applicable law or otherwise) with respect to the Shares and any
shares of Parent Common Stock receivable upon conversion of any Shares in
connection with the Merger.
(b) The Shareholder hereby waives any rights of first
refusal, preemptive rights, rights of redemption or repurchase, rights to
notice and similar rights of the Shareholder under any agreement, arrangement
or understanding applicable to the Shares or New Shares (other than any
Shareholder rights plan or other rights offered pro rata to all Shareholders
of the Company), in each case as the same may apply to the execution and
delivery of the Merger Agreement and the consummation of the Merger and the
other transactions and acts contemplated by the Merger Agreement. Effective
immediately prior to the Effective Time, the Shareholder hereby agrees and
consents to the termination of any such rights and agreements. The Shareholder
agrees to take such actions, and execute and deliver such agreements and
documents, as may reasonably be requested by Parent in order to effect,
confirm or evidence the foregoing waivers and termination.
3. No Voting Trusts. The Shareholder agrees that, prior to the
Termination Time, it will not, and it will use reasonable best efforts to not
permit any Person under the Shareholder's control to, deposit any of the
Shareholder's Shares in a voting trust or subject any of the Shareholder's
Shares to any arrangement with respect to the voting of such Shares other than
agreements entered into with Parent.
4. No Proxy Solicitations. The Shareholder agrees that the
Shareholder will not, nor will the Shareholder permit any Person under the
Shareholder's control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act) in opposition to or competition with the consummation of the Merger, (b)
subject to Section 9 hereof, directly or indirectly solicit, encourage,
initiate or otherwise facilitate any inquiries or the making of any proposal
or offer with respect to an Acquisition Proposal or engage in any negotiation
concerning, or provide any confidential information or data to, or have any
discussions with any Person relating to, an Acquisition Proposal, or (c)
become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company for the
purpose of opposing or competing with the consummation of the Merger.
5. Transfer and Encumbrance. Except for gifts given without
consideration where the recipient executes a voting agreement in form and
substance similar to this Agreement, the Shareholder agrees that, prior to the
Termination Time, the Shareholder will not, directly or indirectly (a)
transfer, sell, offer, contract or agree to sell, pledge or otherwise dispose
of or encumber any of the Shares or any New Shares or (b) announce any
transfer, sale, offer, contract of sale or other disposition of, any of the
Shares or any New Shares, to any Person other than (A) pursuant to the Merger,
or (B) with prior written consent, which consent will not unreasonably
withheld (provided that the exercise of Company options shall not be subject
to the terms of this Section 4), unless the person or entity to whom Shares or
New Shares have been sold, transferred or disposed agrees to be bound by this
Agreement as if a party hereto.
6. Specific Performance. Each party hereto severally acknowledges
that it will be impossible to measure in money the damage to the other party
if a party hereto fails to comply with any of the obligations imposed by this
Agreement and that, in the event of any such failure, the other party will not
have an adequate remedy at law or damages. Accordingly, each party hereto
severally agrees that injunctive relief or other equitable remedy, in addition
to remedies at law or damages, is the appropriate remedy for any such failure
and will not oppose the granting of such relief on the basis that the other
party has an adequate remedy at law. Each party hereto severally agrees that
it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining
such equitable relief.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
8. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the
parties hereto with respect to the subject matter hereof. This Agreement may
not be amended, supplemented or modified, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall
any such waiver be deemed a continuing waiver of any provision hereof by such
party.
9. Shareholder Capacity. The execution of this Agreement by
Shareholder shall be solely in the Shareholder's capacity as the beneficial
owner of the Shares held by Shareholder, and Shareholder makes no agreement or
understanding herein in the Shareholder's capacity, if any, as a director,
officer or employee of the Company or any of its subsidiaries.
10. Preparation of S-4 and Proxy Statement/Prospectus. Following the
consummation of the Merger, Parent, with the assistance of the Company shall,
as soon as practicable, prepare and Parent shall file with the SEC a
post-effective amendment to the Form S-4 (the "Post-Effective Amendment") for
the offer and sale of the Parent Common Stock received by Shareholder in the
Merger pursuant to the Merger in order to permit Shareholder to freely sell
such shares of Parent Common Stock for at least a one-year period following
the Merger. Parent shall use commercially reasonable efforts to have the
Post-Effective Amendment declared effective under the Securities Act of 1933
(the "Securities Act") as promptly as practicable after such filing. Parent
shall also take any action required to be taken under any applicable state
securities laws in connection with the issuance of Parent Common Stock in the
Merger. Parent will advise Shareholder and the Company, promptly after it
receives notice thereof, of the time when the Post-Effective Amendment has
become effective or any supplement or amendment has been filed, the issuance
of any stop order, the suspension of the qualification of the Parent Common
Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Post-Effective
Amendment or comments thereon and responses thereto or requests by the SEC for
additional information. In the event that such Post-Effective Amendment may
not be used for the foregoing purposes, Parent shall promptly following the
Merger prepare, file and use commercially reasonable efforts to cause to be
declared effective by the SEC a registration statement on Form S-3 (the "Form
S-3") to permit Shareholder, for a one-year period following the Merger to
offer and sell shares of Parent Common Stock received in the Merger. Subject
to Section 11.8, all costs, expenses, filing fees associated with the
preparation, filing and maintaining of the Post-Effective Amendment or the
Form S-3 shall be borne by Parent, including the costs and expenses (including
reasonable counsel fees) incurred by Shareholder in connection with its review
of and participation in connection with the Post-Effective Amendment or the
Form S-3.
11. Miscellaneous.
11.1 This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State
of Delaware without regard to its conflicts of law provisions.
11.2 If any provision of this Agreement or the application of
such provision to any Person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and the
application of such provision to Persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
11.3 This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument. Facsimile signatures shall be
valid and binding as original manual signatures.
11.4 This Agreement shall terminate upon the earliest to occur
of (i) the consummation of the Merger or (ii) termination of the Merger
Agreement (the "Termination Time"); provided, however, that Section 10 shall
survive the consummation of the Merger. Upon such termination, no party shall
have any further obligations or liabilities hereunder.
11.5 All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
11.6 From time to time and without additional consideration, the
Shareholder will execute and deliver, or cause to be executed and delivered,
such additional or further transfers, assignments, endorsements, proxies,
consents and other instruments, and perform such further acts, as Parent may
reasonably request for the purpose of effectively carrying out and furthering
the intent of this Agreement.
11.7 No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement will be effective unless such waiver
is set forth in a writing signed by such party, which writing must refer
hereto. No waiver by any party of such condition or breach, in any one
instance, will be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
11.8 Parent agrees that if the Merger is consummated, it shall
pay all fees, costs and expenses (including reasonable attorney fees) up to an
aggregate of $25,000 that are incurred by Shareholder and the other
shareholders of the Company that are entering into similar voting agreements
with Parent in connection with the preparation of this Agreement and the
transactions contemplated hereby (including pursuant to Section 10).
11.9 The obligations of the Shareholder set forth in this
Agreement shall not be effective or binding upon the Shareholder until after
such time as the Merger Agreement is executed and delivered by Parent,
Acquisition Sub and the Company. The parties agree that there is not and has
not been any other agreement, arrangement or understanding between the parties
hereto with respect to the matters set forth herein.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
Precision Castparts Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Xxxxxx L. Crafts, Jr.
By: /s/ Xxxxxx L. Crafts, Jr.
--------------------------------
Address: 000 Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Number of Shares of Common Stock
owned by the Shareholder as of the
date of this Agreement: 200,000
By: /s/ Xxxxxx L. Crafts, Jr.
--------------------------------
