EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into on
May 31, 2004, by and among GENERAL ELECTRIC COMPANY, a New York corporation
("Parent"), and the stockholders of BHA GROUP HOLDINGS, INC., a Delaware
corporation (the "Company"), whose names appear on Schedule A hereto (each a
"Stockholder" and collectively, the "Stockholders").
RECITALS
WHEREAS, concurrent with the execution and delivery of this Agreement,
Parent, Xxxxx Acquisition Company, a Delaware corporation ("Purchaser"), and the
Company have entered into an Agreement and Plan of Merger (as amended, modified
or supplemented in accordance with its terms, the "Merger Agreement"), which
provides for the acquisition of the Company by Parent, subject to certain
conditions, through a merger whereby Purchaser will merge with and into the
Company with the Company surviving and the holders of the outstanding shares of
Company Common Stock will be entitled to receive the Merger Consideration as
provided in the Merger Agreement;
WHEREAS, as of the date hereof, each Stockholder is the beneficial and
record holder of the number of Shares (as defined below) set forth opposite such
Stockholder's name on Schedule A hereto;
WHEREAS, Parent and Stockholder wish to provide for the voting of the
Shares held by the Stockholders with respect to the adoption and approval of the
Merger, the Merger Agreement and the other transactions contemplated thereby;
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that each Stockholder enter into this Agreement;
and
WHEREAS, in order to induce Parent to enter into the Merger Agreement,
each Stockholder is willing to enter into this Agreement;
NOW, THEREFORE, as an inducement to Parent to enter into the Merger
Agreement and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto), and
intending to be legally bound hereby, the parties hereto agree as follows:
AGREEMENT
1. Defined Terms. For purposes of this Agreement the following terms
shall have the following meanings (all other capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Merger
Agreement):
1.1. Expiration Time. "Expiration Time" shall mean the earlier to
occur of (a) the termination of the Merger Agreement in accordance with its
terms, or (b) the Effective Time of the Merger.
1.2. Shares. "Shares" shall mean (with respect to each
Stockholder): (a) all equity securities of the Company (including all shares of
Company Common Stock, Company Preferred Stock, and all options, warrants or
other securities convertible into or exercisable for shares of Company Common
Stock, Company Preferred Stock or any other equity securities of the Company and
any other rights to acquire shares or securities convertible into or exercisable
for shares of Company Common Stock, Company Preferred Stock or any other equity
securities of the Company (collectively being referred to as "Company
Securities")) beneficially owned by such Stockholder as of the date of this
Agreement and (b) all additional Company Securities which such Stockholder
acquires beneficial ownership of during the period from the date of this
Agreement through the Expiration Time.
2. Representations and Warranties of Each Stockholder. Each Stockholder
hereby severally and not jointly represents and warrants to Parent as follows:
2.1. Title to the Shares. Except as set forth on Schedule A with
respect to record ownership, each stockholder is the owner of (both beneficially
and of record), or is the trustee of a trust that is the record holder of, and
whose beneficiaries are the beneficial owners of, the Shares set forth opposite
such Stockholder's name on Schedule A hereto. Each Stockholder has the exclusive
power to vote the Shares on all matters submitted to holders of shares of
Company Common Stock. Each Stockholder has good and marketable title to and owns
all of the Shares free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on voting
rights, restrictions, charges, proxies and other encumbrances of any nature.
Each Stockholder hereby revokes any and all proxies or powers of attorney in
existence immediately prior to the execution of this Agreement with respect to
the Shares, and each Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares.
2.2. Authority Relative to this Agreement. Each Stockholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary trust
or other action on the part of such Stockholder and no trust or other
proceedings are necessary to authorize this Agreement or to consummate the
transactions contemplated by this Agreement. This Agreement has been duly and
validly executed and delivered by each Stockholder and, assuming the due
authorization, execution and delivery by Parent, constitutes a legal, valid and
binding obligation of each Stockholder, enforceable against each Stockholder in
accordance with its terms, (a) except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally, and (b) subject to general
principles of equity. If a Stockholder is married, or marries prior to the
Expiration Time, and such Stockholder's Shares constitute community property or
otherwise require spousal or other
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approval in order for this Agreement to be legal, valid and binding, this
Agreement has been (or, prior to the marriage, will be) approved executed and
delivered by, and constitutes (or, prior to the marriage, will constitute) a
legal, valid and binding obligation of, such Stockholder's spouse, enforceable
against such spouse in accordance with its terms. No trust of which such
Stockholder is a trustee requires the consent of any beneficiary or other person
to the execution and delivery of this Agreement or to the consummation by such
trust of the transactions contemplated by this Agreement or compliance by such
trust with the provisions of this Agreement.
2.3. No Conflict. The execution and delivery of this Agreement by
each Stockholder does not, and the performance of this Agreement by each
Stockholder will not, (a) require any consent, approval, authorization or permit
of, or filing with or notification to, any Governmental Authority by such
Stockholder, (b) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to such Stockholder, or (c) conflict with or
result in a breach of any trust documents of such Stockholder.
3. Covenants of Stockholder.
3.1 Restriction on Transfer. Each Stockholder hereby covenants and
agrees that prior to the termination or expiration of this Agreement, except as
otherwise specifically contemplated by this Agreement, such Stockholder shall
not, and shall not offer or agree to or consent to, sell, transfer, tender,
assign, hypothecate or otherwise dispose of, grant any proxy to, deposit any
Shares into a voting trust, enter into a voting trust agreement or any other
voting arrangement or create or permit to exist any additional security
interest, lien, claim, pledge, option, right of first refusal, agreement,
limitation on voting rights, charge or other encumbrance of any nature
whatsoever with respect to the Shares.
3.2 Additional Shares. Prior to the Expiration Time, each
Stockholder will promptly notify the Parent of the kind and number of any
Company Securities acquired directly or beneficially by such Stockholder, if
any, after the date hereof. Any such shares shall become "Shares" within the
meaning of this Agreement.
3.3 Nonsolicitation. Prior to the Expiration Time, each
Stockholder shall not as a stockholder (either individually or through any
Representative of Stockholder): (a) solicit, initiate, or encourage (including
by way of furnishing information), directly or indirectly, any inquiries
regarding, or the submission of, any proposal that could lead to a Takeover
Proposal or any Takeover Proposal or Superior Proposal; (b) participate in any
discussions or negotiations regarding, or furnish to any Person any information
or data with respect to, or take any other action to knowingly facilitate or
otherwise cooperate in the making of any proposal that constitutes, or could
reasonably be expected to lead to, any Takeover Proposal or Superior Proposal;
or (c) enter into any agreement with respect to any proposal for a Takeover
Proposal or Superior Proposal or approve or resolve to approve any proposal for
a Takeover Proposal or Superior Proposal. Upon execution of this Agreement, each
Stockholder shall (i) immediately cease any existing activities, discussion or
negotiations with any Person conducted prior to such time with respect to any of
the foregoing; and (ii) promptly (but in all events within 24 hours)
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notify Parent in writing of the existence of any proposal, discussion,
negotiation, or inquiry received by such Stockholder that constitutes or could
reasonably be expected to lead to a potential Takeover Proposal or Superior
Proposal and communicate the terms of any such proposal, discussion,
negotiation, or inquiry to Parent (including provision to Parent of any written
materials received by such Stockholder in connection with such proposal,
discussion, negotiation, or inquiry). Each Stockholder shall keep Parent
reasonably apprised of any material development with respect to such proposal,
discussion, negotiation, or inquiry. Nothing in this Section 3.3 shall limit the
operation of Section 4.3 hereof.
4. Voting Agreement; Proxy.
4.1 Voting Agreement. Each Stockholder agrees that, at all times
prior to the Expiration Time, at every meeting of the stockholders of the
Company (however called), and at every adjournment or postponement thereof, and
on every action or approval by written consent of the stockholders of the
Company, such Stockholder shall be present (in person or by proxy) for purposes
of establishing a quorum thereat and shall vote all of the Shares, or shall
cause the Shares to be voted, (a) in favor of the adoption, approval and
consummation of the Merger, the Merger Agreement and the other transactions
contemplated thereby, and in favor of any matter that could reasonably be
expected to facilitate the Merger (to the extent that the Shares have a right to
vote thereon), (b) against any other Takeover Proposal or Superior Proposal, and
(c) against any proposal (other than the Merger Agreement) that could reasonably
be expected to (i) result in any change in the directors of the Company, any
change in the present capitalization of the Company or any amendment to the
Company Certificate of Incorporation or the Company Bylaws, (ii) result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement, (iii) impair in any
material respect the ability of the Company to perform its obligations under the
Merger Agreement, or (iv) otherwise prevent, materially delay or interfere with
the consummation of the transactions contemplated by the Merger Agreement.
4.2 Grant of Proxy.
(a) Each Stockholder hereby irrevocably grants to and appoints,
Parent and each of its designees, and each of them individually as
such Stockholder's proxy and attorney-in-fact (with full power of
substitution) for and in the name, place and stead of such
Stockholder, to vote the Shares or execute one or more written
consents or approvals in respect of Shares in a manner consistent with
this Section 4.
(b) Each Stockholder hereby ratifies and confirms that the
irrevocable proxy set forth in this Section 4.2 is given in connection
with the execution of the Merger Agreement and that such irrevocable
proxy is given to secure the performance of such Stockholder's duties
in accordance with this Agreement. Each Stockholder hereby further
ratifies and confirms that the irrevocable proxy granted hereby is
coupled with an interest and may under no circumstances be revoked
other than by the termination of this Agreement in accordance with its
terms. This irrevocable proxy is executed and intended
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to be irrevocable in accordance with Section 212(e) of the DGCL and
terminable only upon termination of this Agreement.
4.3 Other Voting; Stockholder Capacity. Each Stockholder may vote
on all issues other than those specified in this Section 4 that may come before
any meeting of the stockholders of the Company in its sole discretion, provided
that such vote does not contravene the provisions of this Section 4. Parent
acknowledges and agrees that each Stockholder is executing and delivering this
Agreement solely in Stockholder's capacity as the record and beneficial owner of
the Shares and no provision of this Agreement shall limit or otherwise restrict
such Stockholder with respect to any act or omission that such Stockholder may
undertake or authorize in such Stockholder's capacity as an officer of the
Company or a member of the Board of Directors of the Company, as the case may
be, including, without limitation, any action such Stockholder is permitted to
take in such Stockholder's capacity as a director of the Company pursuant to
Section 5.2 of the Merger Agreement and any vote that such Stockholder may make
in such Stockholder's capacity as a director of the Company with respect to any
matter presented to the Board of Directors of the Company.
5. Consents and Waivers.
5.1. Consummation of Merger. Each Stockholder hereby gives any and
all consents and waivers that are required for the consummation of the Merger
under the terms of any agreements to which such Stockholder is a party or
pursuant to any rights such Stockholder may have, in any case only in such
Stockholder's capacity as the holder of the Shares (and specifically excluding,
for example, any agreement or rights such Stockholder may have pursuant to any
employment or severance agreement).
5.2. Waiver of Appraisal Rights. Each Stockholder hereby waives
any rights of appraisal or rights to dissent (pursuant to the DGCL or otherwise)
with respect to the Merger.
6. Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding on any
Person to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Common Stock or other
voting securities of the Company, the number of Shares shall be deemed adjusted
appropriately and this Agreement and the obligations hereunder shall
automatically and without any additional action by the parties attach to any
additional shares of Company Common Stock or other Company Securities issued to
or acquired by such Stockholder.
7. Termination. This Agreement shall terminate on the first to occur of (a)
the Effective Time or (b) the termination of the Merger Agreement in accordance
with its terms, provided that the provisions of Section 8 of this Agreement
shall survive any such termination and no such termination of this Agreement
shall relieve any party from liability for any breach of this Agreement.
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8. Miscellaneous.
8.1. Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
8.2. Specific Performance. The parties hereto agree that, in the
event any provision of this Agreement is not performed in accordance with the
terms of this Agreement, (a) the non-breaching party will sustain irreparable
damages for which there is not an adequate remedy at law for money damages and
(b) the parties shall be entitled to specific performance of the terms of this
Agreement, in addition to any other remedy at law or in equity.
8.3. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
such parties with respect to the subject matter hereof.
8.4. Assignment. Without the prior written consent of the other
party to this Agreement, no party may assign any rights or delegate any
obligations under this Agreement, by operation of law or otherwise. Any such
purported assignment or delegation made without prior consent of the other party
hereto shall be null and void.
8.5. Parties in Interest. This Agreement shall be binding upon,
inure solely to the benefit of, and be enforceable by, the parties hereto and
their successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person not a party hereto
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
8.6. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
8.7 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
this Agreement is 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 hereto 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 terms of
this Agreement remain as originally contemplated to the fullest extent possible.
8.8. Notices. Except as otherwise provided herein, all notices,
requests, claims, demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in person, by overnight
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courier, by facsimile transmission or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 8.8):
if to Parent:
General Electric Company
GE Energy
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
With additional copies to:
General Electric Company
GE Energy
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
with a copy to:
King & Spalding LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to Stockholder:
At the address specified below such Stockholder's name on the Schedule
A hereto.
8.9 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in New York without regard to any
principles of choice of law or conflicts of law of such state.
8.10 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
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8.11. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
8.12. Additional Documents. Each Stockholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of Parent, to carry out the intent of this Agreement.
8.13. Waiver of Jury Trial. Each party acknowledges and agrees
that any controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each party hereby irrevocably
and unconditionally waives any right such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating to
this Agreement or the transactions contemplated by this Agreement. Each party
certifies and acknowledges that (a) no Representative of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (b) each such party
understands and has considered the implications of this waiver, (c) each such
party makes this waiver voluntarily, and (d) each such party has been induced to
enter into this Agreement by, among other things, the waivers and certifications
in this Section 8.13.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the date first written above.
General Electric Company
By:
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Title:
Name:
STOCKHOLDERS
By:
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[Name]
By:
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[Name]
By:
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[Name]
By:
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[Name]
[Signature Page to Voting Agreement]
