TRUST VOTING AGREEMENT
TRUST VOTING AGREEMENT (this "Agreement"), dated December 22, 1998 by and
between PiRod Holdings, Inc., a Delaware corporation ("PiRod"), and the UNR
Asbestos-Disease Claims Trust (the "Trust").
WHEREAS, capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement (as defined below);
WHEREAS, XXXX Industries, Inc., a Delaware corporation ("XXXX"), and PiRod
propose to enter into an Agreement and Plan of Merger of even date herewith (the
"Merger Agreement") pursuant to which PiRod shall be merged with and into XXXX
(the "Merger"), upon the terms and conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, the Trust beneficially owns 29,348,051
XXXX Shares (the "Owned Shares");
WHEREAS, the Boards of Directors of XXXX and PiRod have adopted
resolutions approving the Merger and recommending that XXXX'x stockholders and
PiRod's stockholders, respectively, vote to approve the Merger;
WHEREAS, the Board of Directors of XXXX has adopted resolutions approving,
for purposes of Section 203 of the GCL, this Agreement;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, PiRod has required that the Trust agree to vote all of the Owned
Shares, together with all XXXX Shares which the Trust acquires after the date
hereof, whether upon the exercise of options, conversion of convertible
securities or otherwise (the Owned Shares, together with such after acquired
shares, the "Shares"), on the terms and subject to the conditions provided for
in this Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by XXXX
and PiRod of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
VOTING AGREEMENT; PROXY
SECTION 1.1. VOTING. The Trust hereby agrees that, subject to the Voting
Conditions set forth below, at any meeting of the stockholders of XXXX called by
XXXX and at every adjournment or postponement thereof, it shall (i) appear at
the meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum, (ii) vote the Shares in favor of the Merger
and approval and adoption of the Merger Agreement at the XXXX Meeting, (iii)
vote the Shares against any action or agreement that would result in a breach in
any material respect of any representation, warranty or covenant of XXXX in the
Merger Agreement, and (iv) vote the Shares against any action or agreement
(other than the Merger Agreement or the transactions contemplated thereby) that
would impede, interfere with, delay, postpone or attempt to discourage the
Merger, including any other extraordinary corporate transaction, such as a
merger, reorganization or liquidation involving XXXX and a third party or any
other proposal of a third party to acquire XXXX. The obligation of the Trust to
vote the Shares pursuant to the preceding sentence is subject to satisfaction of
each of the following conditions (the "Voting Conditions"): (x) there shall have
been no amendment or modification of (including any waiver of any provision of)
the Merger Agreement that is in any manner adverse to the Trust or XXXX (unless
such amendment or modification has been agreed to in writing by the Trust and
XXXX), (y) the Bankruptcy Court, as defined below, shall have approved the sale
pursuant to the Merger Agreement by the Trust of the Shares as provided in the
Plan of Reorganization, as defined below (the "Bankruptcy Court Approval") and
such Bankruptcy Court Approval shall be in full force and effect and (z) there
shall not have been any action taken, or any statute, rule, regulation,
judgment, order or injunction promulgated, enacted, entered or enforced, by any
state, federal or foreign government or governmental authority or by any court,
domestic or foreign, that makes the vote of the Shares by the Trust illegal or
otherwise prohibited.
SECTION 1.2. IRREVOCABLE PROXY. As security for the Trust's obligations
under Section 1.1 hereof and subject to Section 2.1 hereof, the Trust hereby
irrevocably constitutes and appoints PiRod as its attorney and proxy pursuant to
the provisions of Section 212(c) of the GCL, with full power of substitution and
resubstitution, to vote the Shares at any meeting of stockholders of XXXX called
by XXXX in each case only as and to the extent provided in clauses (ii), (iii)
and (iv) of Section 1.1 hereof; PROVIDED, HOWEVER, that PiRod shall not have the
right to vote the Shares unless each of the Voting Conditions shall have been
satisfied as of the time of such vote; and PROVIDED, FURTHER, HOWEVEr, that in
any such vote or other action pursuant to such proxy, PiRod shall not in any
event have the right (and such proxy shall not confer the right) to vote against
the Merger, to vote to reduce the consideration to be received by the XXXX
stockholders or to otherwise amend or modify (or waive any provision of) the
Merger Agreement. The proxy granted pursuant to this Section 1.2 shall
irrevocably cease and shall be of no further force or effect upon (x) any
violation by PiRod of any of the terms of this Agreement or (y) the termination
of the Merger Agreement or this Agreement in accordance with its terms. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE, SUBJECT TO THE FOREGOING AND SECTION
2.1 HEREOF, AND COUPLED WITH AN INTEREST. The Trust hereby revokes all other
proxies and powers of attorney with respect to the Shares that it may have
heretofore appointed or granted and shall take all further actions as may be
necessary or desirable to evidence such revocation, and no subsequent proxy or
power of attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by the Trust with respect thereto, other than
as contemplated by Section 1.1 hereof.
ARTICLE II
TERMINATION
SECTION 2.1. TERMINATION. This Agreement shall terminate on the earlier of
(i) the consummation of the Merger or (ii) the termination of the Merger
Agreement in accordance with its terms; PROVIDED, HOWEVER, that if the Merger
Agreement is terminated by XXXX pursuant to Section 8.1.3(a) thereof as a result
of a Takeover Proposal, this Agreement shall not terminate until the 60th day
following the date on which notice of such Takeover Proposal was first provided
by XXXX to PiRod in accordance with Section 5.1.8 of the Merger Agreement;
PROVIDED, FURTHER, that notwithstanding anything to the contrary in this
Agreement, the Trust shall have the ability, after the Trust determines in good
faith, after consultation with its legal and financial advisers, that a Takeover
Proposal that has not been solicited, initiated or encouraged after the date
hereof in violation of clause 4.3(i) herein may reasonably be expected to result
in a Superior Proposal, throughout such 60-day period, to confirm, orally or in
writing, to the third party that has made such Takeover Proposal that it intends
(subject to such qualifications as the Trust deems appropriate) to enter into a
voting, tender or other agreement with such Third Party with respect to the
Shares upon termination of this Agreement.
SECTION 2.2. EFFECT OF TERMINATION. In the event of a termination of this
Agreement as provided in Section 2.1 hereof, (i) this Agreement and all
obligations hereunder (including, without limitation, the obligations of the
Trust pursuant to Section 1.1 and Article IV hereof and the proxy appointment
under Section 1.2 hereof) shall forthwith become void and of no further force or
effect and (ii) there shall be no liability or obligation on the part of PiRod
or the Trust or their respective officers, directors or Trustees hereunder
thereafter; PROVIDED, HOWEVER, that nothing herein shall relieve any party from
liability for any breach hereof prior to such termination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF PIROD. PiRod hereby
represents and warrants to the Trust as follows:
(a) ORGANIZATION, DUE AUTHORIZATION. PiRod is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
PiRod has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of PiRod, and no other corporate proceedings on the part
of PiRod are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by PiRod and constitutes a valid and binding agreement of
PiRod, enforceable against PiRod in accordance with its terms, subject to the
effect of any applicable bankruptcy, reorganization, insolvency, moratorium or
similar law affecting creditors' rights generally and general principles of
equity.
(b) NO CONFLICTS. Other than in connection with or in compliance with the
provisions of the GCL with respect to the transactions contemplated hereby, the
federal securities laws, the securities laws of the various states, the HSR Act
and foreign laws, no authorization, consent or approval of, or filing with, any
court or any public body or authority is necessary for the consummation by PiRod
of the transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by PiRod will not constitute a breach, violation
or default (or any event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien or encumbrance upon any of the
properties or assets of PiRod under, any note, bond, mortgage, indenture, deed
of trust, license, lease, agreement or other instrument to which PiRod is a
party or by which its properties or assets are bound, other than breaches,
violations, defaults, terminations, accelerations or creation of liens and
encumbrances which, in the aggregate, would not materially impair the ability of
PiRod to perform its obligations hereunder.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust hereby
represents and warrants to PiRod as follows:
(a) ORGANIZATION, DUE AUTHORIZATION. The Trust has been duly formed and is
validly existing as a trust under the laws of the State of Illinois pursuant to
the UNR Asbestos-Disease Claims Trust Agreement dated February 23, 1990, as
amended effective February 18, 1997, (the "Trust Agreement") among UNR
Industries, Inc., as reorganized pursuant to the Plan of Reorganization (as
defined below) as Settlor, and Xxxx X. Xxxxx, Xx., Xxxxxxx X. Xxxxxx, The
Xxxxxxxxx Xxxxx X. XxXxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx, as
Trustees, pursuant to the Consolidated Plan of Reorganization dated March 14,
1989 (the "Plan of Reorganization"), as confirmed by the order of the United
States District Court and the United States Bankruptcy Court for the Northern
District of Illinois, Eastern Division (the "Bankruptcy Court"). The Trust
Agreement remains in full force and effect. The Trust has delivered to PiRod
true and complete copies of the Trust Agreement. The Trust complies in all
respects with the requirements of a trust set forth in Section 524(g)(2)(B)(i)
of the Bankruptcy Reform Act of 1978, as amended. The Trust has the power and
authority to enter into this Agreement and consummate the transactions
contemplated hereby. Except for obtaining the Bankruptcy Court Approval, the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Trustees of the Trust, and no other trust proceedings are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. Subject to
the Bankruptcy Court Approval and subject to the effect of any applicable
bankruptcy, reorganization, insolvency, moratorium or similar law affecting
creditors' rights generally and general principles of equity, this Agreement has
been duly and validly executed and delivered by the Trust and constitutes a
valid and binding agreement of the Trust, enforceable against the Trust in
accordance with its terms.
(b) TITLE; VOTING RIGHTS. The Trust has good and valid title to the
Shares, free and clear of any lien, charge, encumbrance or claim of whatever
nature. Except pursuant to this Agreement and the Plan of Reorganization, the
Shares are not subject to any voting trust agreement or other contract,
agreement, arrangement, commitment or understanding restricting or otherwise
relating to the voting, dividend rights or disposition of the Shares.
(c) OWNERSHIP OF XXXX SHARES. On the date hereof, the Trust owns, of
record or beneficially, 29,348,051 XXXX Shares. The Trust has sole voting power
and sole power of disposition with respect to the Owned Shares, with no
restrictions, subject to applicable federal securities laws, on its rights of
disposition pertaining thereto except as set forth in Section 3.2(d) hereof.
(d) NO CONFLICTS. Other than in connection with or in compliance with the
Bankruptcy Court Approval, the provisions of the GCL, the federal securities
laws, the NASD, the securities or takeover laws of the various states, the HSR
Act and foreign laws, no authorization, consent or approval of, or filing with,
any court or any public body or authority is necessary for the consummation by
the Trust of the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by the Trust will not constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of the properties or assets of the Trust under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument
(including without limitation the Trust Agreement and the Plan of
Reorganization) to which the Trust is a party or by which its properties or
assets are bound, other than breaches, violations, defaults, terminations,
accelerations or creation of liens and encumbrances which, in the aggregate,
would not materially impair the ability of the Trust to perform its obligations
hereunder.
ARTICLE IV
COVENANTS OF THE TRUST
The Trust hereby covenants and agrees as follows:
SECTION 4.1. RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. The
Trust hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares, (ii) grant any proxies,
powers of attorney or other authorization or consent, deposit any Shares into a
voting trust or enter into a voting agreement with respect to any such Shares or
(iii) take any action that would make any representation or warranty of the
Trust contained herein untrue or incorrect or have the effect of preventing or
disabling the Trust from performing its obligations under this Agreement.
SECTION 4.2. ADDITIONAL SHARES. The Trust hereby agrees, while this
Agreement is in effect, to promptly notify PiRod in writing in accordance with
Section 6.3 hereof of the number of new XXXX Shares acquired by the Trust, if
any, after the date hereof and shall provide a certificate to PiRod which shall
reaffirm the representations and warranties of the Trust set forth in Section
3.2 with respect to such additional Shares.
SECTION 4.3. NO SOLICITATION. The Trust shall, and shall direct its
officers, Trustees, employees, representatives and agents to, immediately cease
any discussions or negotiations with any parties other than PiRod that may be
ongoing with respect to a Takeover Proposal. While this Agreement is in effect,
the Trust shall not, and shall not authorize or permit any of its officers,
Trustees or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it or any of them to, directly or
indirectly, (i) solicit, initiate or encourage any inquiries or the making of
any proposal that constitutes, or may reasonably be expected to lead to, any
Takeover Proposal, or (ii) participate in any discussions or negotiations
regarding any Takeover Proposal; PROVIDED, HOWEVER, that if, at any time prior
to the Effective Time, the Trust determines in good faith, after consultation
with its financial and legal advisers, that a Takeover Proposal that has not
been solicited, initiated or encouraged after the date hereof in violation of
clause (i) above may reasonably be expected to result in a Superior Proposal,
the Trust and XXXX may (x) furnish information with respect to XXXX and its
subsidiaries to the third party that has made such Takeover Proposal (and to any
investment banker, financial advisor, attorney, accountant or other
representative retained by such party) pursuant to a customary and reasonable
confidentiality agreement and (y) participate in negotiations regarding such
Takeover Proposal.
SECTION 4.4. NO APPRAISAL RIGHTS. The Trust hereby agrees, while this
Agreement is in effect, that it will not exercise any appraisal rights to which
it may be entitled under the GCL with respect to the Merger.
ARTICLE V
OTHER AGREEMENTS
SECTION 5.1. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective the transactions
contemplated by Article I of this Agreement. The Trust shall use reasonable
efforts to obtain the Bankruptcy Court Approval as promptly as practicable.
SECTION 5.2. PUBLIC ANNOUNCEMENTS. Each of PiRod and the Trust agrees that
it will not issue any press release or otherwise make any public statement with
respect to this Agreement or the transactions contemplated hereby without the
prior consent of the other party, which consent shall not be unreasonably
withheld or delayed; PROVIDED, HOWEVER, that such disclosure can be made without
obtaining such prior consent if (i) the disclosure is required by law or by
obligations imposed pursuant to any agreement with the NASD and (ii) the party
making such disclosure has first used its commercially reasonable best efforts
to consult with the other party about the form and substance of such disclosure.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. NON-SURVIVAL. The respective representations and
warranties made herein shall terminate upon the termination of this
Agreement.
SECTION 6.2. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties without the prior written consent of the other
parties. Except for Xxxx Capital Fund V, L.P., Xxxx Capital Fund V-B, L.P., BCIP
Associates, BCIP Trust Associates, L.P., Xxxx Capital Mezzanine Fund, L.P. and
BCM Capital Partners, L.P., whom the parties agree are third party beneficiaries
of this Agreement, nothing in this Agreement, express or implied, is intended to
confer upon any person, other than the parties hereto and their successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
SECTION 6.3. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed do have been duly received if so given) by hand delivery, telegram, telex
or telecopy, by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
To the Trust as follows:
Xxxx X. Xxxxx, Xx.
Xxxxxxxxxxx Associates
0 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Copy to:
Xx Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
To PiRod:
PiRod Holdings, Inc.
0000 Xxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Chief Executive Officer
Copies to:
Xxxx Capital, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Principal
Xxxxx X. Learner, Esq.
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
SECTION 6.4. GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Delaware,
without giving effect to principles of conflicts of laws of the State of
Delaware or any other jurisdiction that, in either case, would call for the
application of the substantive laws of any jurisdiction other than Delaware.
Each of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, and consents to service of process
by notice as provided in this Agreement, (ii) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court and (iii) agrees that it will not bring any action relating
to this Agreement or any of the transactions contemplated hereby in any court
other than a federal or state court sitting in the State of Delaware. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any federal court located in the State of Delaware or in any
Delaware state court, this being in addition to any other remedy to which they
are entitled at law or in equity.
SECTION 6.5. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
SECTION 6.6. DESCRIPTIVE HEADINGS. The descriptive headings used
hereby are inserted for convenience of reference only and are not intended to
be part of or to effect the meaning or interpretation of this Agreement.
SECTION 6.7. SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
IN WITNESS WHEREOF, PiRod and the Trust have caused this Agreement to be
duly executed as of the day and year first above written.
PIROD HOLDINGS, INC.
By: /S/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: President
UNR ASBESTOS-DISEASE CLAIMS TRUST
By: /S/ XXXX X. XXXXX, XX.
--------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Trustee
