STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT (this "AGREEMENT"), dated June 12, 1998, by and
among Xxxxxxxxx World Industries, Inc., a Pennsylvania corporation ("PARENT"),
Sapling Acquisition, Inc., a Delaware corporation ("PURCHASER") and a
wholly-owned subsidiary of Parent, and each of the parties listed on the
signature pages hereto (each a "STOCKHOLDER", and collectively, the
"STOCKHOLDERS").
WHEREAS, each of the Stockholders is, as of the date hereof, the
record and beneficial owner of the shares of common stock, par value $.01 per
share (the "COMMON STOCK"), of Triangle Pacific Corp., a Delaware corporation
(the "COMPANY"), set forth opposite its name on Annex I hereto;
WHEREAS, Parent, Purchaser and the Company concurrently herewith are
entering into an Agreement and Plan of Merger, dated as of the date hereof (the
"MERGER AGREEMENT"), which provides, among other things, for the acquisition of
the Company by Parent by means of a cash tender offer (the "OFFER") by Purchaser
for all of the outstanding shares of Common Stock and for the subsequent merger
(the "MERGER") of Purchaser with and into the Company upon the terms and subject
to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, the Stockholders have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Purchaser of the Merger Agreement and the mutual representations,
warranties, covenants and agreements set forth herein and therein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. Each
of the Stockholders hereby represents and warrants to Parent and Purchaser,
severally and not jointly, as follows:
(a) Such Stockholder is the beneficial owner of the shares of Common
Stock (as may be adjusted from time to time pursuant to Section 6 hereof, the
"SHARES") set forth opposite its name on Annex I to this Agreement. Such Shares
are held of record, in each case, by the custodian of such Stockholder. On the
date hereof, the Shares opposite such Stockholder's
name constitute all of the Shares owned by such Stockholder. Such Stockholder
has the exclusive right to vote or dispose of (or exercise the voting or
disposition of) such Shares.
(b) Such Stockholder is a corporation, general partnership, limited
partnership, collective investment trust or separate account, as the case may
be, duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization, and such Stockholder has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all corporate, partnership or
other action necessary to authorize the execution, delivery and performance of
this Agreement.
(c) This Agreement has been duly authorized, validly executed and
delivered by such Stockholder and constitutes the legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting enforcement of creditors'
rights generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(d) The execution and delivery of this Agreement by such Stockholder
do not, and the performance by such Stockholder of its obligations hereunder
will not, (i) conflict with, result in a violation or breach of, constitute
(with or without notice or lapse of time or both) a default under, result in or
give to any person any right of termination, cancellation, modification or
acceleration of, or result in the creation or imposition of any Lien upon any of
the assets or properties of such Stockholder under, any of the terms, conditions
or provisions of (A) the certificates of articles of incorporation or by laws
(or other comparable charter documents) of such Stockholder or (B) (x) any Law
or Order of any Governmental or Regulatory Authority applicable to such
Stockholder or any of its respective assets or properties, or (y) any Contract
to which such Stockholder is a party or by which such Stockholder or any of its
respective assets or properties is bound, excluding from the foregoing clauses
(x) and (y) conflicts, violations, breaches, defaults, terminations,
modifications, accelerations and creations and impositions of Liens which,
individually or in the aggregate, could not be reasonably expected to have a
material adverse effect on the ability of such Stockholder to consummate the
transactions contemplated by this Agreement, or (ii) require any filing by such
Stockholder with, or any permit, authorization, consent or approval of, any
Governmental or Regulatory Authority or any third party other than an amendment
to Schedule 13D and Form 4 and/or Form 5. There is no beneficiary or holder of
a voting trust certificate or other interest of any trust of which such
Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby.
(e) The Shares and the certificates representing the Shares owned by
such Stockholder are now and at all times during the term hereof will be held by
such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all Liens, proxies, voting trusts or agreements
or understandings or arrangements whatsoever, except for any such liens or
proxies arising hereunder, and not subject to any preemptive rights.
2
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER.
Each of Parent and Purchaser hereby represents and warrants to the Stockholders
as follows:
(a) Parent and Purchaser are corporations duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of incorporation, and each of Parent and Purchaser has full corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by each of Parent and Purchaser and constitutes the legal, valid and binding
obligation of each of Parent and Purchaser, enforceable against each of them in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance by Parent and Purchaser of their
obligations hereunder and the consummation of the transactions contemplated
hereby will not, (i) conflict with, result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default under,
result in or give to any person any right of termination, cancellation,
modification or acceleration of, or result in the creation or imposition of any
Lien upon any of the assets or properties of Parent or Purchaser under, any of
the terms, conditions or provisions of (A) the certificates or articles of
incorporation or bylaws of Parent or Purchaser or (B) (x) any Law or Order of
any Governmental or Regulatory Authority applicable to Parent or Purchaser or
any of their respective assets or properties, or (y) any Contract to which
Parent or Purchaser is a party or by which Parent or Purchaser or any of their
respective assets or properties is bound, excluding from the foregoing clauses
(x) and (y) conflicts, violations, breaches, defaults, terminations,
modifications, accelerations and creations and impositions of Liens which,
individually or in the aggregate, could not be reasonably expected to have a
material adverse effect on the ability of Parent and Purchaser to consummate the
transactions contemplated by this Agreement, or (ii) require any filing by
Parent or Purchaser with, or any permit, authorization, consent or approval of,
any Governmental or Regulatory Authority.
SECTION 3. PURCHASE AND SALE OF THE SHARES. Each of the Stockholders
hereby agrees to tender the Shares set forth opposite its name on Annex I to
this Agreement into the Offer promptly, and in any event no later than the fifth
business day following the commencement of the Offer pursuant to Section 1.1 of
the Merger Agreement and not to withdraw any Shares so tendered unless the Offer
is terminated or has expired; provided that if such Stockholder shall thereafter
acquire shares of Common Stock, then any such Shares shall be tendered on the
next succeeding business day after such acquisition. Purchaser hereby agrees to
purchase all the Shares so tendered at a price per Share equal to $55.50 per
Share or any higher price that may be paid in the Offer; PROVIDED, HOWEVER, that
Purchaser's obligation to accept for payment and pay for
3
the Shares in the Offer is subject to all the terms and conditions of the Offer
set forth in the Merger Agreement and Annex A thereto.
SECTION 4. TRANSFER OF THE SHARES; PROXIES AND NON-INTERFERENCE.
Prior to the termination of this Agreement, except as otherwise provided herein,
none of the Stockholders shall, directly or indirectly, (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign, or otherwise dispose of, any
or all of the Shares; (ii) enter into any Contract, option or understanding with
respect to any transfer of any or all of the Shares or any interest therein;
(iii) except as provided herein, grant any proxy, power-of-attorney or other
authorization or consent in or with respect to the Shares; (iv) deposit the
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to the Shares; or (v) take any other action that would in any way
restrict, limit or interfere with the performance of such Stockholder's
obligations hereunder or the transactions contemplated hereby.
SECTION 5. STOCKHOLDER CAPACITY. No person executing this Agreement
who is or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such director. Each
Shareholder signs solely in his or her capacity as the owner of, or the trustee
of a trust whose beneficiaries are the owners of, such Shareholder Shares.
SECTION 6. CERTAIN EVENTS. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by any Stockholder, the number of Shares shall be adjusted
appropriately, and this Agreement and the rights and obligations hereunder shall
attach to any additional shares of Common Stock or other securities or rights of
the Company issued to or acquired by any such Stockholder.
SECTION 7. CERTAIN OTHER AGREEMENTS. From the date of this Agreement
until the earlier of the termination of this Agreement or the Effective Time,
none of the Stockholders shall, and none of the Stockholders shall permit or
authorize any advisor or representative retained by or acting for or on behalf
of any such Stockholder to, directly or indirectly, (i) take any action to
initiate, solicit, continue, encourage or facilitate (including by way of
furnishing or disclosing non-public information) any inquiries or the making of
any offer or proposal with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company or any of its subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, 15% or more
of the shares of any class of voting securities of the Company or any of its
subsidiaries or a substantial portion of the assets of the Company or any of its
subsidiaries, other than the transactions contemplated by the Merger Agreement
or by this Agreement (any of the foregoing being referred to as an "ACQUISITION
PROPOSAL"), or (ii) engage in negotiations, discussions or communications
regarding or disclose any information relating to the Company or any of its
subsidiaries or afford access to the properties, books or records of the Company
or any of its subsidiaries to any person,
4
corporation, partnership or other entity or group (a "POTENTIAL ACQUIROR") that
may be considering making, or has made, an Acquisition Proposal or knowingly
facilitate any effort or attempt to make or implement an Acquisition Proposal or
accept an Acquisition Proposal. Each of the Stockholders shall (i) notify
Parent promptly (and in any event within one business day) after receipt of any
Acquisition Proposal (or any indication that any person is considering making an
Acquisition Proposal) or any request for non-public information relating to the
Company or any of its subsidiaries or for access to the properties, books or
records of the Company or any of its subsidiaries by any person that may be
considering making, or has made, an Acquisition Proposal, (ii) notify Parent
promptly of any material change to any such Acquisition Proposal, indication or
request and (iii) upon reasonable request by Parent, provide Parent with all
material information about any such Acquisition Proposal, indication or request.
SECTION 8. FURTHER ASSURANCES. Each of the Stockholders shall, upon
request of Parent or Purchaser, take such further actions as may reasonably be
necessary or desirable to carry out the provisions hereof, provided that the
Stockholders shall not be required to incur any additional costs or expenses or
receive less-than the agreed price without their consent.
SECTION 9. TERMINATION. Except as otherwise provided in this
Agreement, this Agreement, and all rights and obligations of the parties
hereunder, shall terminate immediately upon the earlier of (i) the acquisition
by Parent, through Purchaser or otherwise, of all the Shares, (ii) the
termination of the Merger Agreement in accordance with its terms or (iii) the
Effective Time; PROVIDED, HOWEVER, that Sections 8 and 10 shall survive any
termination of this Agreement.
SECTION 10. EXPENSES. All fees and expenses incurred by any one
party hereto shall be borne by the party incurring such fees and expenses.
SECTION 11. PUBLIC ANNOUNCEMENTS. Each of the Stockholders, Parent
and Purchaser 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, 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.
SECTION 12. DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings indicated below:
"CONTRACT" means any agreement, lease, evidence of indebtedness,
mortgage, indenture, security agreement or other contract (whether written or
oral).
"LAW" means any law, statute, rule, regulation, ordinance and other
pronouncement having the effect of law of the United States, any foreign country
or any domestic or foreign state, county, city or other political subdivision or
of any Governmental or Regulatory Authority.
5
"LIENS" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"ORDER" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
SECTION 13. MISCELLANEOUS.
(a) All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
(A) if to any or all the Stockholders, to:
Oaktree Capital Management LLC
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
with copies to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
6
and
(B) if to Parent or Purchaser, to:
Xxxxxxxxx World Industries, Inc.
000 Xxxx Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
Senior Vice President,
Secretary and General Counsel
with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Xx., Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice is to be delivered pursuant to this Section). Any party
from time to time may change its address, facsimile number or other information
for the purpose of notices to that party by giving notice specifying such change
to the other parties hereto.
(b) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(c) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall be considered one
and the same agreement.
7
(d) This Agreement constitutes the entire agreement, and supersedes
all prior agreements and understandings, whether written and oral, among the
parties hereto with respect to the subject matter hereof.
(e) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware without giving effect to the principles
of conflicts of laws thereof.
(f) Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware or the United
States District Court for the Southern District of New York or any court of the
State of New York located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this paragraph (f) and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the States of
Delaware or New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties, and any such purported assignment shall be null and void; PROVIDED,
HOWEVER, Purchaser or Parent may, without the prior written consent of any
Stockholder assign its rights and obligations to any of its direct or indirect
wholly owned subsidiaries. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the parties
and their respective successors and assigns, and the provisions of this
Agreement are not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(h) If any term, provision, covenant or restriction herein is held by
a court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
(i) Each of the parties hereto acknowledge and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in
any action for specific performance, the defense of adequacy of a remedy at law
and (ii) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement.
8
(j) No amendment, modification or waiver in respect to this Agreement
shall be effective unless it shall be in writing and signed by each party
hereto; provided that ANNEX I hereto may be supplemented by Parent by adding the
name and other relevant information concerning any stockholder of the Company
who agrees to be bound by the terms of this Agreement without the agreement of
any other party hereto, and thereafter such added stockholder shall be treated
as a "Stockholder" for all purposes of this Agreement.
IN WITNESS WHEREOF, each of Parent, the Purchaser and the Stockholders
have caused this Agreement to be duly executed and delivered as of the date
first written above.
XXXXXXXXX WORLD INDUSTRIES, INC.
By:/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
SAPLING ACQUISITION, INC.
By:/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
TCW SPECIAL CREDITS FUND IIIb
By: TCW SPECIAL CREDITS, its general partner
By: TCW ASSET MANAGEMENT COMPANY, its Managing
General Partner
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By:/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxx
9
Title: Authorized Signatory
TCW SPECIAL CREDITS TRUST
By: TRUST COMPANY OF THE WEST, as Trustee
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
By:/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
TCW SPECIAL CREDITS TRUST IIIb
By: TRUST COMPANY OF THE WEST, as Trustee
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By:/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
WEYERHAEUSER COMPANY MASTER RETIREMENT TRUST
By: TCW SPECIAL CREDITS, its investment manager
By: TCW ASSET MANAGEMENT COMPANY, its Managing
General Partner
10
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By:/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
THE COMMON FUND FOR BOND INVESTMENTS
By: TCW SPECIAL CREDITS, as investment manager
By: TCW ASSET MANAGEMENT COMPANY, its Managing
General Partner
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By:/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
TCW SPECIAL CREDITS FUND V - THE PRINCIPAL FUND
By: TCW ASSET MANAGEMENT COMPANY, its General
Partner
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
By:/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
11
TCW ASSET MANAGEMENT COMPANY
By:/s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice Chairman
By:/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
12
ANNEX I
Ownership of Company Common Stock
Number of Shares
----------------
TCW Special Credits Fund IIIb. . . . . . . . . . . . . . . . . . . . . . . . .339,709
TCW Special Credits Trust. . . . . . . . . . . . . . . . . . . . . . . . . . .337,717
TCW Special Credits Trust IIIb . . . . . . . . . . . . . . . . . . . . . . . .144,815
TCW Special Credits Fund V . . . . . . . . . . . . . . . . . . . . . . . . .4,250,085
TCW Asset Management Company . . . . . . . . . . . . . . . . . . . . . . . . .339,053
Weyerhaeuser Company Master
Retirement Trust (separate account). . . . . . . . . . . . . . . . . . . . . .198,801
Common Fund For Bond Investments (separate account). . . . . . . . . . . . . .299,004
13
