STOCKHOLDER AGREEMENT dated as of March 11, 1997. among PACIFICORP
HOLDINGS, INC., a Delaware corporation ("PHI"), POWER ACQUISITION COMPANY., a
Delaware corporation and a direct or indirect wholly owned subsidiary of PHI
("ACo"), and the other parties identified on Schedule A hereto (each, a
"Stockholder").
WHEREAS, each Stockholder desires that TPC Corporation, a Delaware
corporation (the "Company"), PHI and ACo enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement") with respect to the merger of ACo with and into the
Company (the "Merger"); and
WHEREAS, each Stockholder is executing this Agreement as an inducement
to PHI and ACo to enter into and execute the Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by PHI
and ACo of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES. Each Stockholder
severally, and not jointly, represents and warrants to PHI and ACo as follows:
(a) Such Stockholder is the record or beneficial owner of the number
of shares of Class A Common Stock, par value $0.01 per share, and Class B
Common Stock, par value $0.01 per share, of the Company (the "Company
Common Stock"), and holds options for shares of Company Common Stock, each
as set forth opposite such Stockholder's name in Schedule A hereto (as may
be adjusted from time to time pursuant to Section 4, such Stockholder's
"Shares"). Except for such Stockholder's Shares, such Stockholder is not
the record or beneficial owner of any shares of Company Common Stock. Any
of such Shares which are described on Schedule A as option shares shall be
deemed "Option Shares" for the purposes of this Agreement. All other
shares shall be deemed "Owned Shares." Any Option Shares which are
exercised prior to the termination of this Agreement shall be deemed to be
"Owned Shares."
(b) This Agreement has been duly authorized, executed and delivered
by such Stockholder and constitutes the legal, valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies. Neither the execution and delivery of this
Agreement nor the consummation by such Stockholder of the transactions
contemplated hereby will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to
which such Stockholder is a party or bound or to which such
Stockholder's Shares are subject. To the best of such Stockholder's
knowledge, consummation by such Stockholder of the transactions
contemplated hereby will not violate, or require any consent, approval,
or notice under, any provision of any judgment, order, decree, statute,
law, rule or regulation applicable to such Stockholder or such
Stockholder's Shares, except for any necessary filing under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), or state takeover laws.
(c) Such Stockholder's Owned Shares and the certificates representing
such Owned Shares are now and at all times during the term hereof will be
held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances arising
hereunder.
(d) Such Stockholder understands and acknowledges that PHI is
entering into, and causing ACo to enter into, the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
SECTION 2. PURCHASE AND SALE OF SHARES. So long as the Per Share
Amount in the Offer is not less than $13.41 in cash (net to the seller), each
Stockholder hereby severally agrees that it shall tender its Shares into the
Offer prior to the expiration of the Offer and that it shall not withdraw any
Shares so tendered (it being understood that the obligation contained in this
sentence is unconditional). In addition, each Stockholder hereby severally
agrees to sell to ACo, and ACo hereby agrees to purchase, all such
Stockholder's Owned Shares at a price per Share equal to $13.41, or such
higher price per Share as may be offered by ACo in the Offer, provided that
such obligations to purchase and sell are both subject to (i) ACo having
accepted Shares for payment under the Offer and the Minimum Condition (as
defined in the Merger Agreement) (minus any Shares which are the subject of
this Agreement but are not purchased in the Offer) having been satisfied, and
(ii) the expiration or termination of any applicable waiting period under the
HSR Act.
SECTION 3. COVENANTS. Each Stockholder severally, and not
jointly, agrees with, and covenants to, PHI and ACo as follows: such
Stockholder shall not, except as contemplated by the terms of this Agreement,
during the term of this Agreement, (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of such
Stockholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of such Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization or consent in or with respect to such
Shares, (iv) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or (v) take any other
action that would in any way restrict, limit or
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interfere with the performance of its obligations hereunder or the
transactions contemplated hereby; provided that each Stockholder shall be
entitled to transfer all or any portion of such Shareholder's Shares to any
person or entity which agrees in writing to be bound by the provisions of
this Agreement.
SECTION 4. CERTAIN EVENTS. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law
or otherwise, including without limitation such Stockholder's heirs,
guardians, administrators or successors. 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
the acquisition of additional shares of Company Common Stock or other
securities or rights of the Company by any Stockholder, the number of Owned
Shares and Option Shares listed on Schedule A beside the name of such
Stockholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Company Common
Stock or other securities or rights of the Company issued to or acquired by
such Stockholder.
SECTION 5. TRANSFER. Each Stockholder agrees with and covenants to
PHI that such Stockholder shall not request that the Company register the
transfer (booked as entry or otherwise) of any certificated or uncertificated
interest representing any of the securities of the Company, unless such
transfer is made in compliance with this Agreement.
SECTION 6. VOIDABILITY. If prior to the execution hereof, the
Board of Directors of the Company shall not have duly and validly authorized
and approved by all necessary corporate action the acquisition of Company
Common Stock by PHI and ACo and other transactions contemplated by this
Agreement and the Merger Agreement, so that by the execution and delivery
hereof PHI or ACo would become, or could reasonably be expected to become, an
"interested stockholder" with whom the Company would be prevented for any
period pursuant to Section 203 of the DGCL from engaging in any "business
combination" (as such terms are defined in Section 203 of the DGCL), then
this Agreement shall be void and unenforceable until such time as such
authorization and approval shall have been duly and validly obtained.
SECTION 7. STOCKHOLDER CAPACITY. No person executing this
Agreement who is or becomes during the term hereof a director or officer of
the Company makes any agreement or understanding herein in his or her
capacity as such director or officer. Each Stockholder signs solely in his
or her capacity as the record holder and beneficial owner of such
Stockholder's Shares and nothing herein shall limit or affect any actions
taken by a Stockholder in its capacity as an officer or director for the
Company to the extent specifically permitted by the Merger Agreement.
SECTION 8. FURTHER ASSURANCES. Each Stockholder shall, upon
request of PHI
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or ACo, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by PHI or ACo to be necessary or
desirable to carry out the provisions hereof.
SECTION 9. TERMINATION. This Agreement, and all rights and
obligations of the parties hereunder, shall terminate upon the earlier of (a)
the date upon which the Merger Agreement is terminated by the Company, PHI
or ACo for any reason in accordance with its terms or (b) the date that PHI
or ACo shall have purchased and paid for the Shares of each Stockholder
pursuant to Section 2.
SECTION 10. MISCELLANEOUS.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or such other address
for a party as shall be specified by like notice): (i) if to PHI or ACo, to
the address set forth in Section 9.3 of the Merger Agreement; and (ii) if
to a Stockholder, to the address set forth on Schedule A hereto, or such
other address as may be specified in writing by such Stockholder.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
(d) This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement, and shall become
effective (even without the signature of any other Stockholder) as to any
Stockholder when one or more counterparts have been signed by each of PHI,
ACo and such Stockholder and delivered to PHI, ACo and such Stockholder.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts or laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in party,
by operation of law or otherwise,
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by any of the parties without the prior written consent of the other
parties, except by laws of descent. Any assignment in violation of the
foregoing shall be void.
(h) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any event, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances, shall remain in full
force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law.
(i) Each Stockholder agrees that irreparable damage would occur and
that PHI and ACo would not have any adequate remedy at law in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that PHI and ACo shall be entitled to an injunction or
injunctions to prevent breaches by any Stockholder of this Agreement and to
enforce specifically the terms and provisions of this Agreement.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such party.
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IN WITNESS WHEREOF, PHI, ACo and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
PACIFICORP HOLDINGS, INC.
By /s/ XXXXXXX XXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President, Finance
POWER ACQUISITION COMPANY
By /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
/s/ XXXXX X. XXXXXX
--------------------------------------
Xxxxx X. Xxxxxx
/s/ XXXX X. XXXXX
--------------------------------------
Xxxx X. Xxxxx
/s/ J. XXXXX XXXXX
--------------------------------------
J. Xxxxx Xxxxx
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SCHEDULE A
Number of Shares
Number of Shares of Class A Common Number of Shares
of Class A Stock Issuable upon of Class B
Common Stock Exercise of Common Stock
Stockholder (including address) Owned Options Owned
------------------------------- -------------- ---------------- -----------
Xxxxx X. Xxxxxx 12,985 634,813 ---
000 XxxxXxxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxx 164,629 634,813 ---
000 XxxxXxxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
J. Xxxxx Xxxxx 66,827 634,813 ---
000 XxxxXxxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
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