SHAREHOLDER AGREEMENT
EXHIBIT
99.1
Exhibit
A
SHAREHOLDER
AGREEMENT, dated as of September 13, 2010 (this “Agreement”), by the
undersigned shareholder (the “Shareholder”) of O.I.
Corporation, an Oklahoma corporation (the “Company”), for the
benefit of ITT Corporation, an Indiana corporation (“Parent”), and the
Company.
RECITALS
WHEREAS,
Parent, Oyster Acquisition Corp., an Oklahoma corporation and a direct wholly
owned subsidiary of Parent (“Sub”), and the
Company are entering into an Agreement and Plan of Merger, dated as of September
13, 2010 (the “Merger
Agreement”), whereby, upon the terms and subject to the conditions set
forth in the Merger Agreement, each issued and outstanding share of Common
Stock, par value $0.10 per share, of the Company (“Company Common
Stock”), not owned directly or indirectly by Parent or the Company, will
be converted into the right to receive the Merger Consideration specified in
Section 1.5(c) of the Merger Agreement;
WHEREAS,
the Shareholder (i) owns of record the number of shares of Company Common Stock
and/or (ii) owns or holds conversion rights, exchange rights, warrants or stock
options (whether or not vested) to acquire that number of shares of Company
Common Stock appearing on the signature page hereof (all such shares of Company
Common Stock, together with any other shares of capital stock of the Company
acquired by such Shareholder after the date hereof and during the term of this
Agreement, being collectively referred to herein as the “Subject Shares”);
and
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, Parent has
required that the Shareholder agree, and in order to induce Parent to enter into
the Merger Agreement the Shareholder has agreed, to enter into this
Agreement.
NOW,
THEREFORE, in consideration of the promises and the mutual covenants and
agreements set forth herein, the Shareholder agrees as follows:
1. Covenants of
Shareholder. Until the termination of the Shareholder’s
obligations in accordance with Section 3, the
Shareholder agrees as follows:
(a) At
the Shareholder Meeting (or at any adjournment thereof) or in any other
circumstances upon which a vote, consent or other approval with respect to the
Merger or the Merger Agreement is sought, the Shareholder shall appear or
otherwise cause the Subject Shares to be cast in accordance with the applicable
procedures relating thereto so as to ensure that the Subject Shares are duly
counted as present thereat for purposes of calculating a
quorum.
(b) At
the Shareholder Meeting (or at any adjournment thereof) or in any other
circumstances upon which a vote, consent or other approval with respect to the
Merger or the Merger Agreement is sought, the Shareholder shall vote (or cause
to be voted) the Subject Shares in favor of the Merger, the adoption of the
Merger Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement; provided, however, that in the
event a Company Adverse Recommendation Change is made in response to a Superior
Proposal and continues in effect in compliance with the Merger Agreement, the
Shareholder shall not be bound by the obligations set forth in this Section
1(b).
(c) At
any meeting of shareholders of the Company (or at any adjournment thereof) or in
any other circumstances upon which the Shareholder’s vote, consent or other
approval is sought, the Shareholder shall vote (or cause to be voted) the
Subject Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by the Company or any of its Subsidiaries or any other Takeover Proposal,
(ii) any amendment of the Company’s Certificate of Incorporation, as amended, or
Bylaws or other proposal or transaction involving the Company or any of its
Subsidiaries, which amendment or other proposal or transaction would in any
manner (A) impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement,
(B) reasonably be expected to result in a breach of the Merger Agreement in any
respect or (C) change in any manner the voting rights of any class of capital
stock of the Company, and (iii) any nomination, proposal to elect or election of
any person as a director of the Company who is not a member of the Company’s
Board of Directors on the date hereof.
(d) The
Shareholder shall not, nor shall the Shareholder permit any affiliate, director,
officer, employee, investment banker or attorney or other advisor or
representative of the Shareholder to, (i) directly or indirectly solicit,
initiate or knowingly encourage the submission of, any Takeover Proposal or (ii)
directly or indirectly participate in any discussions or negotiations regarding,
or furnish to any person any information with respect to, or take any other
action to facilitate any inquiries or the making of any proposal that
constitutes or may reasonably be expected to lead to, any Takeover
Proposal.
(e) The
Shareholder shall use the Shareholder’s commercially reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with Parent in doing, all things necessary, proper or advisable to
support and to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by the Merger
Agreement.
(f) The
Shareholder hereby agrees not to (i) sell, transfer, pledge, assign or otherwise
dispose of (including by gift) (collectively, “Transfer”), or enter
into any contract, option or other arrangement (including any profit-sharing
arrangement) with respect to the Transfer of such Shareholder’s Subject Shares
to any person or (ii) enter into any voting arrangement, whether by proxy,
voting agreement or otherwise, in relation to such Shareholder’s Subject
Shares.
(g) The
Shareholder further agrees not to commit or agree to take any action
inconsistent with the foregoing.
2. Representations and
Warranties. The Shareholder represents and warrants to Parent
as follows:
(h) The
Shareholder is the record and beneficial owner of, and has good title to, the
Subject Shares, including the shares set forth below the Shareholder’s name on
the signature page hereto, free and clear of any Liens. The
Shareholder does not own, of record or beneficially, or hold any conversion
rights, exchange rights, warrants or stock options to acquire, any shares of
capital stock of the Company other than the Subject Shares. The
Shareholder has the sole right to vote, and the sole power of disposition with
respect to, the Subject Shares, and none of the Subject Shares is subject to any
voting trust, proxy or other agreement, arrangement or restriction with respect
to the voting or disposition of such Subject Shares, except as contemplated by
this Agreement.
(i) The
Shareholder has the legal capacity and all requisite power and authority to
enter into this Agreement and to perform the Shareholder’s obligations hereunder
and consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Shareholder. Assuming the
due authorization, execution and delivery of this Agreement by Parent, this
Agreement constitutes the valid and binding agreement of the Shareholder
enforceable against the Shareholder in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors’ rights generally and by general equitable principles. The
execution and delivery of this Agreement by the Shareholder does not and will
not conflict with any agreement, order or other instrument binding upon the
Shareholder, nor require the Shareholder to make or obtain any regulatory filing
or approval.
4. Further
Assurances. The Shareholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out the transactions contemplated by this
Agreement.
5. Successors, Assigns and
Transferees Bound. Any successor, assignee or transferee
(including a successor, assignee or transferee as a result of the death of the
Shareholder, such as an executor or heir) shall be bound by the terms hereof,
and the Shareholder shall take any and all actions necessary to obtain the
written confirmation from such successor, assignee or transferee that it is
bound by the terms hereof.
6. Recapitalizations, Stock
Dividends, etc. If, between the date of this Agreement and the
Effective Time, (a) the outstanding shares of Company Common Stock shall be
increased, decreased, changed into or exchanged for a different number of shares
or different class, in each case, by reason of any reclassification,
recapitalization, stock split, split-up, combination or exchange of shares, (b)
a stock dividend or dividend payable in any other securities of the Company
shall be declared with a record date within such period, (c) any other
securities of the Company shall be declared with a record date within such
period or (d) any similar event shall have occurred, then the term “Subject
Shares” shall be deemed to refer to and include such shares as well as all such
additional shares, stock dividends and any other securities into which or for
which any or all of such changes may be changed or exchanged or which are
received in such transaction.
7. Shareholder
Information. The Shareholder hereby agrees to permit Parent
and the Company to publish and disclose in the Proxy Statement, any public
announcement and any report filed with or furnished to the SEC the Shareholder’s
identity and ownership of the Subject Shares and the nature of the Shareholder’s
commitments, arrangements and understandings under this Agreement.
8. Stop Transfer
Order. In furtherance of this Agreement, the Shareholder
hereby authorizes and instructs the Company to instruct its transfer agent to
enter a stop transfer order with respect to all of the Subject
Shares.
9. Remedies. The
Shareholder acknowledges that money damages would be both incalculable and an
insufficient remedy for any breach of this Agreement by it and that any such
breach would cause Parent irreparable harm. Accordingly, the
Shareholder agrees that in the event of any breach or threatened breach of this
Agreement, Parent, in addition to any other remedies at law or in equity it may
have, shall be entitled, without the requirement of posting a bond or other
security, to equitable relief, including injunctive relief and specific
performance.
10. No Ownership
Interest. Nothing contained in this Agreement shall be deemed
to vest in Parent any direct or indirect ownership or incidence of ownership of
or with respect to the Subject Shares. All rights, ownership and
economic benefits of and relating to the Subject Shares shall remain vested in
and belong to the Shareholder, and Parent shall have no authority to direct the
Shareholder in the voting or disposition of the Subject shares, except as
otherwise provided herein.
11. 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 terms,
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and 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 contemplated by this Agreement may be consummated as originally
contemplated to the fullest extent possible.
12. Amendment. This
Agreement may be amended only by means of a written instrument executed and
delivered by both the Shareholder and Parent.
13. Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial.
(a)
This Agreement shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the laws of the
state of Oklahoma without regard to the conflict of law principles thereof. The
parties hereby irrevocably submit to the jurisdiction of the courts of the State
of Oklahoma and the federal courts of the United States of America located in
the State of Oklahoma solely in respect of the interpretation and enforcement of
the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in such manner as may be permitted by law shall be valid and
sufficient service thereof.
(b)
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 SUCH 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 (i) NO REPRESENTATIVE, AGENT OR ATTORNEY 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, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION
13.
14. Capitalized
Terms. Capitalized terms used in this Agreement that are not
defined herein shall have such meanings as set forth in the Merger
Agreement.
15. Counterparts. This
Agreement may be executed in counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other
parties.
16. No Limitation on Actions of
the Shareholder as Director. In the event the Shareholder is a
director of the Company, notwithstanding anything to the contrary in this
Agreement, nothing in this Agreement is intended or shall be construed to
require the Shareholder to take or in any way limit any action that the
Shareholder may take to discharge the Shareholder’s fiduciary duties as a
director of the Company.
[Remainder
of page intentionally left blank; signature page follows.]
IN
WITNESS WHEREOF, the Shareholder has signed this Agreement as of the date first
written above.
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Name:
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Number
of shares of Company
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Common
Stock owned on the
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date
hereof: ____________
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Number
of shares of Company
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Common
Stock subject to conversion rights, exchange rights, warrants and stock
options owned and/or held on the
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date
hereof: [____________]
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Accepted
and agreed to
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as
of the date first written above:
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ITT
Corporation
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By:___________________________________
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Name:
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Title:
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O.I.
Corporation
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By:____________________________________
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Name:
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Title:
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[Signature
Page to Shareholder Agreement]
