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SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and Xxxx X. Xxxx (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common
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Stock held by the Stockholder (whether or not currently held by the Stockholder;
the Stockholder Shares, together with any shares acquired by the Stockholder in
any capacity after the date hereof and prior to the termination of this
Agreement whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise (the "Shares")), complying with
the terms of the Offer to Purchase, (ii) the certificates representing the
Shares, and (iii) all other documents or instruments required to be delivered
pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
Upon the occurrence of any of such circumstances, Purchaser
shall be entitled to exercise the Option and (subject to Section 1.3) Parent
shall be entitled to purchase the Shares and the Stockholder shall sell the
Shares to Parent. Parent shall exercise the Option by delivering written notice
thereof to the Stockholder (the "Notice"), specifying the number of Shares to be
purchased and the date, time and place for the closing of such purchase which
date shall not be less than three business days nor more than five business days
from the date the Stockholder receives the Notice and in no event shall such
date be later than the Option Expiration Date. The closing of the purchase of
Shares pursuant to this Section 1.2 (the "Closing") shall take place on the
date, at the time and at
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the place specified in such notice; provided, that if at such date any of the
conditions specified in Section 1.3 shall not have been satisfied (or waived),
Parent may postpone the Closing until a date within five business days after
such conditions are satisfied (but not later than the Option Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote
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or consent, in favor of the Articles Amendment, the Merger Agreement, the Merger
and the transactions contemplated thereby, and (ii) to oppose any Acquisition
Proposal and to vote all Shares now or hereafter owned by such Stockholder, or
execute a consent or proxy, against any Acquisition Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 197,263 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend on
any and all certificates evidencing the Shares:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT SHAREHOLDER
AGREEMENT, DATED AS OF JULY 12, 1999, BY AND AMONG PARENT, PURCHASER
AND STOCKHOLDER. ANY TRANSFER OF SUCH SHARES OF COMMON STOCK IN
VIOLATION OF THE TERMS OF SUCH AGREEMENT SHALL BE NULL AND VOID AND OF
NO EFFECT WHATSOEVER.
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SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to
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perform their obligations hereunder. The execution, delivery and performance by
the Parent and Purchaser of this Agreement and the consummation by the Parent
and Purchaser of the transactions contemplated hereby (i) have been duly
authorized by all necessary corporate action on the part of the Parent and
Purchaser, (ii) require no action by or in respect of, or filing with, any
Governmental Body (except as may be required under the HSR Act and under the
Exchange Act), or (iii) do not and will not contravene or constitute a default
under, the certificate of incorporation or by-laws of Parent or Purchaser or any
provision of applicable law or regulation or any, judgment, injunction, order,
decree, material agreement or other material instrument binding on the Parent or
Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating to any Acquisition Proposal (including,
without limitation, the identify of the party making any such
Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights hereunder,
the number and kind of shares or securities subject to this Agreement
and
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the price set forth herein at which Shares may be purchased from the
Stockholder pursuant to the Offer or the exercise of the Option shall
be appropriately and equitably adjusted so that Parent and Purchaser
shall receive pursuant to the Offer or the exercise of the Option the
number and class of shares or other securities or property that Parent
or Purchaser, as the case may be, would have received in respect of the
Shares purchasable pursuant to the Offer or the exercise of the Option
if such purchase had occurred immediately prior to such event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement and injunctive
relief shall be available to the Parent, Purchaser or the Stockholder for any
breach by the other party or parties of any agreement, covenant or
representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant
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to Section 1.2 hereof. None of the representations and warranties contained in
this Agreement shall survive the acceptance for payment and payment for the
Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures thereto and thereof were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other
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conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby are not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions be consummated as originally contemplated to the fullest extent
possible. To the extent that any provision of this Agreement and the Merger
Agreement conflict, the provisions of the Merger Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Title: Executive Vice President
--------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Title: Executive Vice President
--------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ Xxxx X. Xxxx (SEAL)
--------------------------------
Xxxx X. Xxxx
Address for Notices:
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
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SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and Xxxxxx X.
Xxxxxxx (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
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ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
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Upon the occurrence of any of such circumstances, Purchaser
shall be entitled to exercise the Option and (subject to Section 1.3) Parent
shall be entitled to purchase the Shares and the Stockholder shall sell the
Shares to Parent. Parent shall exercise the Option by delivering written notice
thereof to the Stockholder (the "Notice"), specifying the number of Shares to be
purchased and the date, time and place for the closing of such purchase which
date shall not be less than three business days nor more than five business days
from the date the Stockholder receives the Notice and in no event shall such
date be later than the Option Expiration Date. The closing of the purchase of
Shares pursuant to this Section 1.2 (the "Closing") shall take place on the
date, at the time and at the place specified in such notice; provided, that if
at such date any of the conditions specified in Section 1.3 shall not have been
satisfied (or waived), Parent may postpone the Closing until a date within five
business days after such conditions are satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Articles Amendment, the
Merger Agreement, the Merger and the transactions contemplated thereby, and (ii)
to oppose any Acquisition Proposal and to vote all Shares now or hereafter owned
by such Stockholder, or execute a consent or proxy, against any Acquisition
Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 13,584Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend on
any and all certificates evidencing the Shares:
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THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF JULY 12, 1999, BY AND AMONG
PARENT, PURCHASER AND STOCKHOLDER. ANY TRANSFER OF SUCH SHARES
OF COMMON STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT
SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
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ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated hereby
(i) have been duly authorized by all necessary corporate action on the part of
the Parent and Purchaser, (ii) require no action by or in respect of, or filing
with, any Governmental Body (except as may be required under the HSR Act and
under the Exchange Act), or (iii) do not and will not contravene or constitute a
default under, the certificate of incorporation or by-laws of Parent or
Purchaser or any provision of applicable law or regulation or any, judgment,
injunction, order, decree, material agreement or other material instrument
binding on the Parent or Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating
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to any Acquisition Proposal (including, without limitation, the
identify of the party making any such Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights hereunder,
the number and kind of shares or securities subject to this Agreement
and the price set forth herein at which Shares may be purchased from
the Stockholder pursuant to the Offer or the exercise of the Option
shall be appropriately and equitably adjusted so that Parent and
Purchaser shall receive pursuant to the Offer or the exercise of the
Option the number and class of shares or other securities or property
that Parent or Purchaser, as the case may be, would have received in
respect of the Shares purchasable pursuant to the Offer or the exercise
of the Option if such purchase had occurred immediately prior to such
event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement
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18
and injunctive relief shall be available to the Parent, Purchaser or the
Stockholder for any breach by the other party or parties of any agreement,
covenant or representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures
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thereto and thereof were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Title: Executive Vice President
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Title: Executive Vice President
--------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ Xxxxxx X. Xxxxxxx (SEAL)
---------------------------------
Xxxxxx X. Xxxxxxx
Address for Notices:
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
21
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and Seddon Xxxxx, Jr. (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
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ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
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Upon the occurrence of any of such circumstances, Purchaser
shall be entitled to exercise the Option and (subject to Section 1.3) Parent
shall be entitled to purchase the Shares and the Stockholder shall sell the
Shares to Parent. Parent shall exercise the Option by delivering written notice
thereof to the Stockholder (the "Notice"), specifying the number of Shares to be
purchased and the date, time and place for the closing of such purchase which
date shall not be less than three business days nor more than five business days
from the date the Stockholder receives the Notice and in no event shall such
date be later than the Option Expiration Date. The closing of the purchase of
Shares pursuant to this Section 1.2 (the "Closing") shall take place on the
date, at the time and at the place specified in such notice; provided, that if
at such date any of the conditions specified in Section 1.3 shall not have been
satisfied (or waived), Parent may postpone the Closing until a date within five
business days after such conditions are satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Articles Amendment, the
Merger Agreement, the Merger and the transactions contemplated thereby, and (ii)
to oppose any Acquisition Proposal and to vote all Shares now or hereafter owned
by such Stockholder, or execute a consent or proxy, against any Acquisition
Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 82,858 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend on
any and all certificates evidencing the Shares:
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THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF JULY 12, 1999, BY AND AMONG
PARENT, PURCHASER AND STOCKHOLDER. ANY TRANSFER OF SUCH SHARES
OF COMMON STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT
SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
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ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated hereby
(i) have been duly authorized by all necessary corporate action on the part of
the Parent and Purchaser, (ii) require no action by or in respect of, or filing
with, any Governmental Body (except as may be required under the HSR Act and
under the Exchange Act), or (iii) do not and will not contravene or constitute a
default under, the certificate of incorporation or by-laws of Parent or
Purchaser or any provision of applicable law or regulation or any, judgment,
injunction, order, decree, material agreement or other material instrument
binding on the Parent or Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating
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27
to any Acquisition Proposal (including, without limitation, the
identify of the party making any such Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights hereunder,
the number and kind of shares or securities subject to this Agreement
and the price set forth herein at which Shares may be purchased from
the Stockholder pursuant to the Offer or the exercise of the Option
shall be appropriately and equitably adjusted so that Parent and
Purchaser shall receive pursuant to the Offer or the exercise of the
Option the number and class of shares or other securities or property
that Parent or Purchaser, as the case may be, would have received in
respect of the Shares purchasable pursuant to the Offer or the exercise
of the Option if such purchase had occurred immediately prior to such
event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement
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and injunctive relief shall be available to the Parent, Purchaser or the
Stockholder for any breach by the other party or parties of any agreement,
covenant or representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures
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thereto and thereof were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Title: Executive Vice President
--------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Title: Executive Vice President
--------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ Seddon Xxxxx, Jr. (SEAL)
--------------------------------
Seddon Xxxxx, Jr.
Address for Notices:
University Research Park
Suite 0000
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
31
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and Xxxxx X.
Xxxxx (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
32
ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
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Upon the occurrence of any of such circumstances, Purchaser
shall be entitled to exercise the Option and (subject to Section 1.3) Parent
shall be entitled to purchase the Shares and the Stockholder shall sell the
Shares to Parent. Parent shall exercise the Option by delivering written notice
thereof to the Stockholder (the "Notice"), specifying the number of Shares to be
purchased and the date, time and place for the closing of such purchase which
date shall not be less than three business days nor more than five business days
from the date the Stockholder receives the Notice and in no event shall such
date be later than the Option Expiration Date. The closing of the purchase of
Shares pursuant to this Section 1.2 (the "Closing") shall take place on the
date, at the time and at the place specified in such notice; provided, that if
at such date any of the conditions specified in Section 1.3 shall not have been
satisfied (or waived), Parent may postpone the Closing until a date within five
business days after such conditions are satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Articles Amendment, the
Merger Agreement, the Merger and the transactions contemplated thereby, and (ii)
to oppose any Acquisition Proposal and to vote all Shares now or hereafter owned
by such Stockholder, or execute a consent or proxy, against any Acquisition
Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 10,682 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend
on any and all certificates evidencing the Shares:
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35
THE SHARES OF COMMON STOCK REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF JULY
12, 1999, BY AND AMONG PARENT, PURCHASER
AND STOCKHOLDER. ANY TRANSFER OF SUCH
SHARES OF COMMON STOCK IN VIOLATION OF THE
TERMS OF SUCH AGREEMENT SHALL BE NULL AND
VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
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ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated hereby
(i) have been duly authorized by all necessary corporate action on the part of
the Parent and Purchaser, (ii) require no action by or in respect of, or filing
with, any Governmental Body (except as may be required under the HSR Act and
under the Exchange Act), or (iii) do not and will not contravene or constitute a
default under, the certificate of incorporation or by-laws of Parent or
Purchaser or any provision of applicable law or regulation or any, judgment,
injunction, order, decree, material agreement or other material instrument
binding on the Parent or Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating
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to any Acquisition Proposal (including, without limitation, the
identify of the party making any such Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights hereunder,
the number and kind of shares or securities subject to this Agreement
and the price set forth herein at which Shares may be purchased from
the Stockholder pursuant to the Offer or the exercise of the Option
shall be appropriately and equitably adjusted so that Parent and
Purchaser shall receive pursuant to the Offer or the exercise of the
Option the number and class of shares or other securities or property
that Parent or Purchaser, as the case may be, would have received in
respect of the Shares purchasable pursuant to the Offer or the exercise
of the Option if such purchase had occurred immediately prior to such
event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement
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38
and injunctive relief shall be available to the Parent, Purchaser or the
Stockholder for any breach by the other party or parties of any agreement,
covenant or representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures
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thereto and thereof were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
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40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Title: Executive Vice President
-----------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Title: Executive Vice President
-----------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ Xxxxx X. Xxxxx (SEAL)
-------------------------------------------------
Xxxxx X. Xxxxx
Address for Notices:
0000 Xxxxxxxxx Xxxx, X-00
Xxxxxxxxx, XX 00000
41
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and F. Xxxxx Xxxx, Xx. (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
42
ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
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43
Upon the occurrence of any of such circumstances, Purchaser
shall be entitled to exercise the Option and (subject to Section 1.3) Parent
shall be entitled to purchase the Shares and the Stockholder shall sell the
Shares to Parent. Parent shall exercise the Option by delivering written notice
thereof to the Stockholder (the "Notice"), specifying the number of Shares to be
purchased and the date, time and place for the closing of such purchase which
date shall not be less than three business days nor more than five business days
from the date the Stockholder receives the Notice and in no event shall such
date be later than the Option Expiration Date. The closing of the purchase of
Shares pursuant to this Section 1.2 (the "Closing") shall take place on the
date, at the time and at the place specified in such notice; provided, that if
at such date any of the conditions specified in Section 1.3 shall not have been
satisfied (or waived), Parent may postpone the Closing until a date within five
business days after such conditions are satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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44
ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Articles Amendment, the
Merger Agreement, the Merger and the transactions contemplated thereby, and (ii)
to oppose any Acquisition Proposal and to vote all Shares now or hereafter owned
by such Stockholder, or execute a consent or proxy, against any Acquisition
Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 24,263 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend
on any and all certificates evidencing the Shares:
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45
THE SHARES OF COMMON STOCK REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF JULY
12, 1999, BY AND AMONG PARENT, PURCHASER
AND STOCKHOLDER. ANY TRANSFER OF SUCH
SHARES OF COMMON STOCK IN VIOLATION OF THE
TERMS OF SUCH AGREEMENT SHALL BE NULL AND
VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
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46
ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated hereby
(i) have been duly authorized by all necessary corporate action on the part of
the Parent and Purchaser, (ii) require no action by or in respect of, or filing
with, any Governmental Body (except as may be required under the HSR Act and
under the Exchange Act), or (iii) do not and will not contravene or constitute a
default under, the certificate of incorporation or by-laws of Parent or
Purchaser or any provision of applicable law or regulation or any, judgment,
injunction, order, decree, material agreement or other material instrument
binding on the Parent or Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating
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47
to any Acquisition Proposal (including, without limitation, the
identify of the party making any such Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights hereunder,
the number and kind of shares or securities subject to this Agreement
and the price set forth herein at which Shares may be purchased from
the Stockholder pursuant to the Offer or the exercise of the Option
shall be appropriately and equitably adjusted so that Parent and
Purchaser shall receive pursuant to the Offer or the exercise of the
Option the number and class of shares or other securities or property
that Parent or Purchaser, as the case may be, would have received in
respect of the Shares purchasable pursuant to the Offer or the exercise
of the Option if such purchase had occurred immediately prior to such
event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement
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48
and injunctive relief shall be available to the Parent, Purchaser or the
Stockholder for any breach by the other party or parties of any agreement,
covenant or representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures
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49
thereto and thereof were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
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50
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Title: Executive Vice President
-----------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Title: Executive Vice President
-----------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ F. Xxxxx Xxxx, Xx. (SEAL)
-----------------------------------------------
F. Xxxxx Xxxx, Xx.
Address for Notices:
Xxx Xxxxx Xxxxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, XX 00000
51
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and Xxxxx X.
Xxxxxx (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
52
ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
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53
Upon the occurrence of any of such circumstances, Purchaser
shall be entitled to exercise the Option and (subject to Section 1.3) Parent
shall be entitled to purchase the Shares and the Stockholder shall sell the
Shares to Parent. Parent shall exercise the Option by delivering written notice
thereof to the Stockholder (the "Notice"), specifying the number of Shares to be
purchased and the date, time and place for the closing of such purchase which
date shall not be less than three business days nor more than five business days
from the date the Stockholder receives the Notice and in no event shall such
date be later than the Option Expiration Date. The closing of the purchase of
Shares pursuant to this Section 1.2 (the "Closing") shall take place on the
date, at the time and at the place specified in such notice; provided, that if
at such date any of the conditions specified in Section 1.3 shall not have been
satisfied (or waived), Parent may postpone the Closing until a date within five
business days after such conditions are satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Articles Amendment, the
Merger Agreement, the Merger and the transactions contemplated thereby, and (ii)
to oppose any Acquisition Proposal and to vote all Shares now or hereafter owned
by such Stockholder, or execute a consent or proxy, against any Acquisition
Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 218,989 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend
on any and all certificates evidencing the Shares:
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THE SHARES OF COMMON STOCK REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF JULY
12, 1999, BY AND AMONG PARENT, PURCHASER
AND STOCKHOLDER. ANY TRANSFER OF SUCH
SHARES OF COMMON STOCK IN VIOLATION OF THE
TERMS OF SUCH AGREEMENT SHALL BE NULL AND
VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
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ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated hereby
(i) have been duly authorized by all necessary corporate action on the part of
the Parent and Purchaser, (ii) require no action by or in respect of, or filing
with, any Governmental Body (except as may be required under the HSR Act and
under the Exchange Act), or (iii) do not and will not contravene or constitute a
default under, the certificate of incorporation or by-laws of Parent or
Purchaser or any provision of applicable law or regulation or any, judgment,
injunction, order, decree, material agreement or other material instrument
binding on the Parent or Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating
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to any Acquisition Proposal (including, without limitation, the
identify of the party making any such Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights hereunder,
the number and kind of shares or securities subject to this Agreement
and the price set forth herein at which Shares may be purchased from
the Stockholder pursuant to the Offer or the exercise of the Option
shall be appropriately and equitably adjusted so that Parent and
Purchaser shall receive pursuant to the Offer or the exercise of the
Option the number and class of shares or other securities or property
that Parent or Purchaser, as the case may be, would have received in
respect of the Shares purchasable pursuant to the Offer or the exercise
of the Option if such purchase had occurred immediately prior to such
event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement
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58
and injunctive relief shall be available to the Parent, Purchaser or the
Stockholder for any breach by the other party or parties of any agreement,
covenant or representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures
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thereto and thereof were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
SECTION 6.13. Pledged Shares. Notwithstanding anything to the contrary
herein, in the event this Agreement conflicts with any agreement or
understanding governing any of the 185,292 Shares pledged to Wachovia Bank,
N.A., String & Strongfellow or Xxxx X. Xxxx (the "Pledge Agreements"), the
Pledge Agreements shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Title: Executive Vice President
-----------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Title: Executive Vice President
-----------------------------------
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ Xxxxx X. Xxxxxx (SEAL)
-----------------------------------------------
Xxxxx X. Xxxxxx
Address for Notices:
000000 Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
61
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and Xxxxxx X. Xxxxxxxxx (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
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ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
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63
Upon the occurrence of any of such circumstances, Purchaser shall be
entitled to exercise the Option and (subject to Section 1.3) Parent shall be
entitled to purchase the Shares and the Stockholder shall sell the Shares to
Parent. Parent shall exercise the Option by delivering written notice thereof to
the Stockholder (the "Notice"), specifying the number of Shares to be purchased
and the date, time and place for the closing of such purchase which date shall
not be less than three business days nor more than five business days from the
date the Stockholder receives the Notice and in no event shall such date be
later than the Option Expiration Date. The closing of the purchase of Shares
pursuant to this Section 1.2 (the "Closing") shall take place on the date, at
the time and at the place specified in such notice; provided, that if at such
date any of the conditions specified in Section 1.3 shall not have been
satisfied (or waived), Parent may postpone the Closing until a date within five
business days after such conditions are satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Articles Amendment, the
Merger Agreement, the Merger and the transactions contemplated thereby, and (ii)
to oppose any Acquisition Proposal and to vote all Shares now or hereafter owned
by such Stockholder, or execute a consent or proxy, against any Acquisition
Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 103,000 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend
on any and all certificates evidencing the Shares:
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THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF JULY 12, 1999, BY AND AMONG
PARENT, PURCHASER AND STOCKHOLDER. ANY TRANSFER OF SUCH SHARES
OF COMMON STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT
SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
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ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. SectionSection
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating to any Acquisition Proposal (including,
without limitation, the identify of the party making any such
Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure
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of the Company which would have the effect of diluting or changing
Parent and Purchaser's rights hereunder, the number and kind of shares
or securities subject to this Agreement and the price set forth herein
at which Shares may be purchased from the Stockholder pursuant to the
Offer or the exercise of the Option shall be appropriately and
equitably adjusted so that Parent and Purchaser shall receive pursuant
to the Offer or the exercise of the Option the number and class of
shares or other securities or property that Parent or Purchaser, as the
case may be, would have received in respect of the Shares purchasable
pursuant to the Offer or the exercise of the Option if such purchase
had occurred immediately prior to such event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement and injunctive
relief shall be available to the Parent, Purchaser or the Stockholder for any
breach by the other party or parties of any agreement, covenant or
representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
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SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures thereto and thereof were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
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SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ Xxxxxx X. Xxxxxxxxx (SEAL)
-------------------------------------
Xxxxxx X. Xxxxxxxxx
Address for Notices:
000 XxXxxxx Xxxx
Xxxxxxx, XX 00000
71
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of July 12, 1999 (this "Agreement"),
among Fedders Corporation, a Delaware corporation (the "Parent"), TI Acquisition
Corp., a Pennsylvania corporation and an indirect wholly owned subsidiary of the
Parent ("Purchaser"), and Xxxxxx X. Xxxxxx III (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this Agreement
the Parent, Purchaser and Trion, Inc., a Pennsylvania corporation (the
"Company"), have entered into an Agreement and Plan of Merger dated as of the
date hereof (such Agreement and Plan of Merger, as amended from time to time,
the "Merger Agreement"), which provides, among other things, that Purchaser
shall make the Offer (as defined in the Merger Agreement) to purchase at a price
of $5.50 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.50 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, and to grant to Parent an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholder under certain circumstances, all on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
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ARTICLE I
Tender Offer and Option
SECTION 1.1. Tender of Shares. (a) Within five business days of the
commencement by Purchaser of the Offer, the Stockholder shall tender to the
Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares owned by
the Stockholder if the Purchaser amends the Offer to (w) reduce the Offer Price
to less than $5.50 in cash, net to the stockholders, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change the form of
consideration payable in the Offer or (z) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company (other than
insignificant changes or amendments or other than to waive any condition). The
Stockholder shall give Purchaser at least two business days' prior notice of any
withdrawal of Shares owned by the Stockholder pursuant to the immediately
preceding proviso.
SECTION 1.2. Option. (a) The Stockholder hereby irrevocably grants
Parent an option (the "Option"), exercisable only upon the events and subject to
the conditions set forth herein, to purchase any or all of the Shares at a
purchase price per share equal to $5.50 (or such higher per share price as may
be offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.3 and the
termination provisions of Section 6.7, Parent may exercise the Option in whole
or in part at any time prior to the date 60 days after the expiration or
termination of the Offer (such sixtieth day being herein called the "Option
Expiration Date") if (x) the Stockholder fails to comply with any of its
obligations under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section 1.1(b) (but the
Option shall not limit any other right or remedy available to the Parent or
Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer
is not consummated because of the failure to satisfy any of the conditions to
the Offer set forth in Annex A to the Merger Agreement (other than as a result
of any action or inaction of the Parent or Purchaser which constitutes a breach
of the Merger Agreement).
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Upon the occurrence of any of such circumstances, Purchaser shall be
entitled to exercise the Option and (subject to Section 1.3) Parent shall be
entitled to purchase the Shares and the Stockholder shall sell the Shares to
Parent. Parent shall exercise the Option by delivering written notice thereof to
the Stockholder (the "Notice"), specifying the number of Shares to be purchased
and the date, time and place for the closing of such purchase which date shall
not be less than three business days nor more than five business days from the
date the Stockholder receives the Notice and in no event shall such date be
later than the Option Expiration Date. The closing of the purchase of Shares
pursuant to this Section 1.2 (the "Closing") shall take place on the date, at
the time and at the place specified in such notice; provided, that if at such
date any of the conditions specified in Section 1.3 shall not have been
satisfied (or waived), Parent may postpone the Closing until a date within five
business days after such conditions are satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Parent (in
accordance with Parent's instructions) the certificates representing the Shares
owned by the Stockholder and being purchased pursuant to Section 1.2(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Parent shall deliver to the Stockholder, by bank wire transfer of immediately
available funds, an amount equal to the number of Shares being purchased from
the Stockholder as specified in the Notice multiplied by $5.50 (or such higher
per share price as may be offered by Parent in the Offer).
SECTION 1.3. Conditions to Option. The obligation of Parent to purchase
the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Body, nor any
statute, rule, regulation or order promulgated or enacted by any
Governmental Body prohibiting, or otherwise restraining, such purchase.
SECTION 1.4. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase, and may allow the Option to
expire without exercising the Option and purchasing all or any Shares pursuant
to such exercise. If all Shares validly tendered and not withdrawn are not
accepted for payment and paid for in accordance with the terms of the Offer to
Purchase or pursuant to the exercise of the Option, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Articles Amendment, the
Merger Agreement, the Merger and the transactions contemplated thereby, and (ii)
to oppose any Acquisition Proposal and to vote all Shares now or hereafter owned
by such Stockholder, or execute a consent or proxy, against any Acquisition
Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 69,125 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer, the Merger or the
exercise of the Option, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever (collectively,
"Liens"). None of the Shares owned by the Stockholder is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with any Lien any of
the Shares, (ii) enter into any contract, option, put, call, "collar" or other
agreement or understanding with respect to any Transfer of any or all of the
Shares or any interest therein; (iii) 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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend
on any and all certificates evidencing the Shares:
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THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF JULY 12, 1999, BY AND AMONG
PARENT, PURCHASER AND STOCKHOLDER. ANY TRANSFER OF SUCH SHARES
OF COMMON STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT
SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any Governmental Body
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and the Stockholder has no option to purchase
or right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
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ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated hereby
(i) have been duly authorized by all necessary corporate action on the part of
the Parent and Purchaser, (ii) require no action by or in respect of, or filing
with, any Governmental Body (except as may be required under the HSR Act and
under the Exchange Act), or (iii) do not and will not contravene or constitute a
default under, the certificate of incorporation or by-laws of Parent or
Purchaser or any provision of applicable law or regulation or any, judgment,
injunction, order, decree, material agreement or other material instrument
binding on the Parent or Purchaser.
SECTION 4.2. Binding Effect. This Agreement has been duly executed and
delivered by the Parent and Purchaser and is a valid and binding agreement of
the Parent and Purchaser, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Parent for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. The Stockholder shall not directly or
indirectly (i) solicit, initiate or knowingly encourage (or authorize
any person to solicit, initiate or encourage) any Acquisition Proposal,
or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or
otherwise knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do
or seek the foregoing. The Stockholder shall promptly advise the
Purchaser of the terms of any communications it or any of its
affiliates may receive relating
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to any Acquisition Proposal (including, without limitation, the
identify of the party making any such Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights hereunder,
the number and kind of shares or securities subject to this Agreement
and the price set forth herein at which Shares may be purchased from
the Stockholder pursuant to the Offer or the exercise of the Option
shall be appropriately and equitably adjusted so that Parent and
Purchaser shall receive pursuant to the Offer or the exercise of the
Option the number and class of shares or other securities or property
that Parent or Purchaser, as the case may be, would have received in
respect of the Shares purchasable pursuant to the Offer or the exercise
of the Option if such purchase had occurred immediately prior to such
event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement
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and injunctive relief shall be available to the Parent, Purchaser or the
Stockholder for any breach by the other party or parties of any agreement,
covenant or representation hereunder.
SECTION 6.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $5.50
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the earlier of (i) the close of business on March 1, 2000, or
(ii) the Effective Time.
SECTION 6.8. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effects as if the signatures
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thereto and thereof were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: General Counsel
TI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
Address for Notices:
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
/s/ Xxxxxx X. Xxxxxx III (SEAL)
---------------------------------------
Xxxxxx X. Xxxxxx III
Address for Notices:
000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
